HomeMy WebLinkAboutOliver 96-02-23IN THE MATTER OF the grievance of Sharo~n Oliver
AND IN THE MATTER OF the arbitration of the'g'ii~r~ance
BETWEEN:
Seneca College of Applied Arts and Technology
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Ontario Public Service Employees' Union
PLACE AND DATES OF HEARING: Toronto, Ontario, November 15, 1995,
January 19, 22 and 23, 1996
BOARD OF ARBITRATION:
Jacqueline Campbell
Sherril Murray
Stanley Schiff, chairman
APPEARANCES FOR THE EMPLOYER:
Mel Fogel
Bev Malcolm
Cindy Hazell
Jane Wilson
Stephen Shamie, counsel
APPEARANCES FOR THE UNION:
Eugene Wilson
Sharon Oliver
Charles Suma
Susan Philpott, counsel
APPEARANCE FOR THE INCUMBENT:
Brenda Malcom
AWARD & REASONS
The grievor has been a Program Assistant, Faculty of Continuing Education,
since August 1990. In December 1994 she and another member of the bargaining
unit applied for the vacant position of Program Coordinator for the Faculty's Computer
Studies programs. Concluding that neither applicant met the minimum qualifications,
the selection committee rejected both. The committee nonetheless granted the grievor
an interview as if she had met the minimum. The result was the committee's decision
to confirm the rejection. The grievor appealed under an internal process. The appeal
failed. The grievor then launched the present grievance, claiming that the College
violated s. 17.1.1 of the collective agreement "by not giving [her] proper
consideration...", and asking that she be awarded the position. Several months later
the College hired Brenda Malcom to fill the position. She had not previously been a
member of the unit.
Malcom was informed of her right to attend the hearing and take part. 'She
attended without counsel and, after the board explained to her an incumbent's rights to
participate, she chose to continue alone, at least initially.
Following the usual procedure, the union introduced evidence first. Only the
grievor was called as a witness. At the end of her testimony, the College moved for a
non-suit, electing to call no evidence. Malcom joined in the motion.
As the Ontario Divisional Court has said, the law and practice of court non-suit
motions apply in the hearing of grievances by labour arbitrators. Ontario v. OPSEU
(Cahoon grievance) (1990), unreported. So, what we must do is examine the
evidence, without making credibility determinations and in the light most favourable to
the union, to determine whether a reasonable arbitrator as trier of fact could come to
factual and legal conclusions justifying an award in the grievor's favour. See Hall v.
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Pemberton (1974), 50.R. (2d) 438 (Ont: C.A.); Re Gallant (1985), 56 O.R. (2d) 160,
167 (Ont. C.A.).
We start by looking to the applicable collective agreement provisions and
arbitral standards under them.
Section 17.1.1 of the agreement says that, when applications for job vacancies
come in from bargaining unit members, the College must look to "the qualifications,
experience and seniority of the applicants in relation to the requirements of the vacant
position." Sections 17.1.1.1 and 17.1.4 then contemplate consideration of applicants
outside the unit after the assessment of internal applicants is finished. Arbitrators have
long said that, if no internal applicant meets the minimum of necessary qualifications,
an employer is free to go outside the unit, and that we conclude is what ss. 17.1.1.1
and 17.1.4 are about. In the present situation, the selection committee decided that
the grievor failed to meet minimum qualifications, then looked beyond the bargaining
unit and ultimately settled on Malcom. Under both the collective agreement and
arbitral thinking, if the committee was right about the grievor, the action was proper.
In assessing the grievor, the committee tested her personal "qualifications [and]
experience" against what the job posting said:
QUALIFICATIONS
A minimum of a three-year college diploma (or equivalent) in Computer Studies
and several years' progressively responsible experience in program
coordination and development are required. Demonstrated knowledge of
several system platforms, programming languages, operating systems (UNIX,
AS/400), business systems, and the latest technological trends as they relate to
computer uses is also required. Further studies in adult education, program
planning, and community development would be an asset, as would teaching
experience. The following are essential: excellent interpersonal and
communication (oral and written) skills to interact effectively with the College's
multi-cultural/racial/able staff, students and the public; time management;
demonstrated abilities to motivate, set priorities, resolve conflicts and problem-
solve; initiative and creativity; and the ability to respond effectively to client
and/or College needs. Access to a vehicle for travel to other campuses is
necessary.
The great majority of arbitrators have agreed that, in the ordinary exercise of
management's rights and absent anything to the contrary in the collective agreement,
the employer in the first instance may determine the specific qualifications needed for
a particular job position. The line of awards stretches back to before the early 1960s,
e.g., Re Union Gas Co. and Nat'l Union of Natural Gas Workers (1961), 12 L.A.C. 58,
61 (Reville, chairman) (stating that "there is a wealth of authority to support the
proposition..."), and comes right up to the near-present. E.g., Re Bd. of School
Trustees, Delta School District and CUPE (1994), 46 L.A.C. (4th) 216, 228 (Laing,
arbitrator). An example of an award part way down the line is Re Reynolds Aluminum
Co. and Int'l Molders Union (1974), 5 L.A.C. (2d) 251,254, issued by a board chaired
by the present chairman. To succeed on a grievance against an employer's rejection
on the ground that the grievor does not satisfy the minimum of the qualifications, the
union must convince the arbitrator of the contrary.
The union here challenges the majority arbitral view by pointing to Re
Metropolitan Gen'l Hospital and ONA (1990), 17 L.A.C. (4th) 57, 64-65, where
arbitrator Roberts turned the ordinary rule around. In his view, unless some provision
in the collective agreement specifically gives the employer the right to establish job
qualifications, the employer has no power to do it and must simply assess each job
applicant's personal qualifications against the job demands. Roberts cites no authority
for this proposition except Re St. Catherines Gen'l Hospital and S.E.U. (1984), 13
L.A.C. (3d) 378, 381 (Teplitsky, chairman), where the discussion comes after the board
has determined the grievance on another ground and where no award is cited and
nothing said about the long-standing contrary proposition. Another award supporting
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the union's position, referred to in argument on another issue, is Re Metro Toronto
Children's Aid Society and Staff Ass'n of the Children's Aid Soc. (1979), 24 L.A.C. (2d)
206, 213-14 (Adams, chairman). The board there said that an employer can set
"specific academic qualifications...for a position...in appropriate circumstances...but
arbitrators have required the employer to demonstrate that educational qualifications
are necessary to discharge the duties of the job." The two awards cited in support help
very little: the reasoning in one is self-contradicting, while the other supports the
majority's view. Beyond that, the board made no attempt to respond to the contrary
arbitral proposition adopted just a few paragraphs before. In Re Sydenham District
Hospital and S.E.U. (1992), 29 L.A.C. (4th)370, 378 (Brandt, arbitrator), Metro Toronto
Children's Aid Society is Cited and followed without discussion.
We are with the majority. Apart from the overwhelming weight of the awards, we
think the majority's view gives meaning in this context to management's right to
manage. Absent anything to the cOntrary the parties negotiate into their agreement,
the employer chooses what jobs shall be done and what their content will be. It
follows, we think, that at least in the first instance and again absent anything contrary
the parties decide on, the employer should then be free to decide what qualifications
any employee must have to do those jobs. The power of the employer so to decide is
often written into management's rights provisions, and that has been done in the
agreement before us:
3.1 Union Acknowledgements
The Union acknowledges that it is the exclusive function of the Colleges to:
-- generally to manage the College and without restricting the generality of the
foregoing, the right to plan, direct and control operations..., direct its personnel,
determine...methods..., the extension [or] limitation...of operations and all other
rights and responsibilities not specifically modified elsewhere in this agreement.
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But the employer's power here is not absolute. Arbitrators have long limited it
by the need, among others, for the employer's good faith and the reasonable relation
of the chosen qualifications to the specific work to be done. The awards go back at
least to the 1960s, e.g., Re Cabot Carbon of Canada Ltd. and Oil, Chemical & Atomic
Workers (1969), 20 L.A.C. 97, 99 (Weatherill, chairman) (educational qualification),
and continue, again, to the near-present. Re Bd. of School Trustees, Delta School
District, cited above. Reynolds Aluminum is, also again, part way down the line. The
purpose of the "reasonable relation" formula is clear. The arbitrator with no insider's
knowledge of the employer's enterprise and no responsibility for operating it must
leave the employer broad leeway to decide what qualifications are needed to have a
particular job done at least adequately. The leeway rejects an arbitrator's authority to
second-guess the employer just because it is the arbitrator's opinion the particular
qualifications are not needed. All that is required under the formula is a relationship
within the bounds of reason, a standard to which an arbitrator can be educated in the
hearing room. But, since the challenge to the qualification comes from the union, to
succeed the union must persuade the arbitrator that the chosen qualifications do not
bear that reasonable relation.
So, to succeed on this grievance, the union would be bound at the end to
persuade us either that the grievor satisfied the qualifications stated in the posting or, if
not, that those qualifications fitted into one of the exceptions. The only exception the
union has relied on is that of reasonable relation to the job duties. For the purpose of
the non-suit motion, then, the College must persuade us that there is not evidence
capable of supporting a finding of fact that the grievor satisfied the qualifications and a
finding that they do not bear a reasonable relation to the coordinator's job duties. In
examining the evidence, we must look to the testimony of the grievor, the only witness
the union called, most favourably to the union's position on the issues. On this we
note that, insofar as the grievor made differing and even self-contradictory assertions
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as her testimony went along, we must look only to those assertions most helping the
union's case. With this in mind, we turn to the paragraph of the job posting under the
heading, Qualifications, and the evidence bearing on each of them. We will consider
only those stated to be "required", "essential" or "necessary".
1. A minimum of a three-year college diploma...in Computer Studies. Since the
grievor does not claim to have such a diploma, there is no evidence to support any
such finding.
2. Alternatively, the equivalent to such a diploma. As we see it, "equivalent"
here can mean a completed group of courses sufficient to satisfy the terms of the
diploma, or a diploma or degree whose requirements are substantially the same as
those for the three-year college diploma or even, we might concede, the employee's
mastery by independent study of the various subjects comprised in the diploma's
stated requirements. There is no evidence that the grievor satisfies any of these. She
has ten credits out of the twelve needed for the certificate in Microcomputer Support
Analysis. Not only does that not get her the certificate but, according to her own
testimony taken at its best, the certificate program is not comparable to the more
elaborate diploma program which requires thirty credits. As for the diploma program,
her evidence is that she is twelve credits short under the requirements set out by the
College in 1992 when she began her studies. Six of them are in core courses and the
other six in required extra courses. Under the revised requirements in the current
calendar, she is fifteen credits short. She has taken none of the four programming
courses and the three data base design courses; she has taken only one of the four
system analysis and design courses and one of the three operating systems courses.
There is no evidence that she has any diploma or degree substantially the same as
the diploma required, nor any evidence that she has pursued any independent study
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in the subjects comprised in the requirements for the diploma. And, at the end, she
testified in cross-examination that she did not have the educational equivalent of the
required three-year diploma. Under the non-suit motion test, we must conclude that on
the evidence no reasonable trier of fact could find in the union's favour here.
3. Several years' progressively responsible experience in program
coordination and development. Both during examination-in-chief and in cross-
examination the grievor testified that she does not have that, and nowhere in her
testimony did she claim that she did. The union asks us to ignore the grievor's
admissions on the ground that we do not know what the requirement means. If we do
not know, it was up to the union to have the requirement explained to us. No evidence
does. To the extent that we understand the requirement, there is not any evidence
tending to show that the grievor satisfies it. Again, under the non-suit standard, the
union fails here.
4. Demonstrated knowledge of several system platforms, programming
languages, operating systems (UNIX, AS/400), business systems, and the latest
technological trends as they relate to computer uses. As we understand the union's
argument, the union concedes that the grievor does not satisfy this. If we are wrong
about a concession, we nonetheless find that there is not evidence allowing a trier of
fact reasonably to conclude that she does satisfy it. We of course must ignore her
statements as she went along that she does not know much about various of the
matters set out, since she also made statements that she has the "demonstrated
knowledge" about this or that one of them. On one of the matters, however, she was
unequivocal: she does not have "demonstrated knowledge of...programming
languages". Since the requirement is a package of matters about which
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"[d]emonstrated knowledge...is required", that admission is enough. The non-suit
motion succeeds here.
5. Excellent interpersonal and communications (oral and written) skills...The
College virtually concedes that the grievor satisfies all the individual requirements in
this group. We agree that the evidence is certainly capable of allowing that
conclusion. The non-suit motion would fail on this point.
6. Access to a vehicle... No evidence or argument was directed to this. Since
we assume that the parties do not see it as an issue, we will ignore it.
In all, we conclude that there is not enough evidence allowing reasonable
inferences that the grievor satisfies any of the listed qualifications we have numbered
1 through 4. The question now is: is there enough evidence allowing a reasonable
inference that those qualifications do not bear a reasonable relation to the job
demands of the program coordinator?
According to the grievor's testimony, the computer industry has changed over
the last decades requiring comparable changes in computer education to meet the
industry's needs. The result is that what has been taught over time may differ from
what is needed now. In this context, the College offers a credit section of Computer
Studies and a non-credit section of Microcomputer training. The Computer Studies
section is post-secondary, leading to a diploma for graduates who will go into industry
as computer professionals. The Microcomputer training is not necessarily post-
secondary. It leads to a certificate signifying the holder's skills in the use of computers.
As the current calendar says, the program is directed to "[w]ork and hobby-related
learning and experience". The position in issue, the grievor said, is the program
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coordinator for the credit section. As we read the job description in the posting
document, while the position certainly focuses on that, it also includes "a diverse group
of other programs", presumably non-credit.
In the grievor's testimony-in-chief, she outlined what she saw as the content of
the job and then, in cross-examination, agreed that what is set out in the pages of the
Position Description Form under the heading, "Duties and Responsibilities", is
accurate (except, as she said, for the time percentages shown). This PDF is one of the
documents the union filed as an exhibit at the opening of the hearing. When we
compare the PDF to what the grievor originally said in testimony, we see that, while the
PDF substantially incorporates her o~Jtline, it contains much more.
The listed Duties and Responsibilities contain separate groups of activities
under the following headings: "Coordinates a group of programs within the Faculty of
Continuing Education"; "Manages part-time staff and faculty"; "Advises students [and]
deals with student academic standing"; "Develops programs and subjects"; "Develops
marketing strategies and participates in program marketing"; "Represents the College
to community groups, business and professional associations"; "Participates in
departmental/Faculty planning and monitoring"; "Liaises with other Schools/Faculties";
and "In all of the above, works as a member of a departmental and Faculty team". The
"Position Summary", appearing in the PDF just before the Duties and Responsibilities,
says this:
The program coordinator has responsibility for ensuring the quality and
currency of an assigned body of Continuing Education Programs. The
coordinator manages part-time staff and faculty, and existing programs:
conducts needs analysis, initiates research and develops marketable new
programs. The incumbent advises students on academic matters, their program
planning and progression through the program. The incumbent works closely
with faculty, coordinators and chairs from other schools within the College and
represents the College in negotiations with the external community and
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business associations. In all of these responsibilities, the coordinator is a
member of the Faculty's professional staff, exercising a high degree of
independent judgement and initiative based on adult education expertise and
budgetary responsibility.
In her testimony challenging the qualification of college diploma in Computer
Studies or equivalent set out in the posting, the grievor first testified about the
usefulness in the coordinator's job of completing each of the courses in the diploma
program she has not completed. Again and again she told us that taking a particular
course was not necessary to be able to do the job. That however is not the point; the
point is whether the knowledge gained from successfully completing that and the other
courses bears a reasonable relation to the job duties. On this we note her testimony
that, respecting certain of the courses, the coordinator's having knowledge of the
content is "important" in the job or, respecting one of them, "useful". Respecting
another of them, she could not testify one way or the other about its importance or
usefulness since she did not have a course description available.
The grievor later testified about the need fOr knowledge and understanding of
the computer studies discipline to fulfil the various Duties and Responsibilities set out
in the PDF. About one or other of those listed under the first heading, "Coordinates a
group of programs...", she said that there was no need to have "great" knowledge and
understanding and that it was "not critical" to have the knowledge and understanding.
About the duty and responsibility to "hire qualified part-time faculty" listed under the
next heading, "Manages part-time staff and faculty", she said that, while it was not
"critical to have a knowledge of the Computer Studies subjects" to carry that out, it is
"important".
She testified at length about the various items listed under the heading,
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"Advises students; deals with student academic standing". That part of the total job,
she said, takes over half the time in the job, "closer to seventy percent", and in doing it
knowledge and understanding of the discipline is "critical". She focussed on various
of the specific duties and responsibilities listed under the heading. She said that, to
"determine the awarding of advanced standing..." and to "assess prior learning", it is
"critical" for the coordinator to have the knowledge and understanding. To "investigate
complaints" that are technical in nature, she said that the instructors or the part-time
coordinator (all of whom, on her testimony, have the professional qualifications) can
help her. To be involved with the faculty in student appeals against assigned grades,
it is "possibly...critical to have the knowledge or understanding" and "some such
knowledge is critical."
To "[d]evelop programs and subjects"--the heading of the next group--she said
that the coordinator "definitely must have the knowledge and understanding". To work
with faculty members in doing this part of the job, it is "essential..-.to have the
knowledge and understanding". As for "[d]evelop[ing] marketing strategies..." and
"[r]epresent[ing] the College to community...", she admitted not knowing what the
coordinator does. She said nothing about the groups under the last three headings.
Finally she told us that the "demonstrated knowledge" of the various matters
required as a qualification in the posting was important to liaising with faculty,
speaking to students, developing programs and dealing with the external world. While
she early claimed that much less than demonstrated knowledge of "several system
programs" was sufficient, that still leaves untouched the other matters there listed.
These relate to job duties under each of the second through sixth of the subject
headings in the PDF.
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In all, we cannot conclude on this review of the grievor's evidence taken at its
best that it would justify a conclusion that the College's stated qualifications bear no
reasonable relation to the job duties. Indeed we think the evidence tends to show the
contrary.
In argument the union challenged the reasonableness of the diploma
qualification on the ground that, since it did not contemplate only a recently-completed
course of study, a diploma in the rapidly changing Computer Studies discipline from,
say, 1973 would represent obsolete knowledge. The immediate answer is that the
Qualifications set out in the posting also contain the requirement for "[d]emonstrated
knowledge of...the latest technological trends as they relate to computer uses". The
combination of what even a decades-old diploma represents and the extra up-to-date
demonstrated knowledge could, we think, hardly be characterized as obsolete
knowledge. On the basis of the evidence, we therefore cannot say that the diploma
qualification in context allows an inference of unreasonable relation to job demands.
We now turn to the union's challenge to the interview process and result.
Once the selection committee decided that neither of the internal applicants had
minimum qualifications, the necessary search within the bargaining unit was over;
there was no need to interview either of them. For the awards of other arbitrators in
agreement, see Re The Tribune (Division of Cariboo Press Ltd.) and Communications
Workers of America (1989), 4 L.A.C. (4th) 390, 394 (Chertkow, arbitrator), citing and
quoting Workers' Compensation Bd. and Workers' Compensation Bd. Employees'
Union (1984), unreported (Hope, chairman). However, since the committe nonetheless
chose to interview the grievor, we think a proper job had to be done. As we see the
evidence, there is none tending to show that it was not.
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In argument the union focussed on three alleged flaws in what happened: the
committee did not take into account the grievor's performance evaluations in her
present job as program assistant; the committee's final scoring of the grievor was
factually wrong; and the questions were unduly technical in light of the job demands.
In testimony the grievor 'also challenged the qualifications of the panel members to
judge her technical competence.
The matter of the committee's alleged failure to consider the grievor's
performance evaluations was not, according to the evidence, raised during the pre-
arbitration grievance procedure. It was certainly not raised during the grievor's
testimony nor by the union's counsel at any time before final argument. In that light we
think it was simply not in issue and we should not consider it. Apart from that, there is
no evidence one way or the other tending to show whether the committee looked at
the evaluations. Even if we were to consider this allegation, the lack of evidence is
fatal to the union's position on the non-suit motion.
The allegation that the committee factually erred in the assessment is not
supported by the evidence. In argument the union focussed on four of the eight
categories on which the committee scored the grievor. On each of the four--as on the
other four the union did not challenge in argument--the committee gave her a rating of
1 ("Has Weaknesses in Qualifications"). Respecting category 3, "Ability to deliver and
manage programs", the union concedes that the grievor has not taken the courses in
the diploma program which comprise the bulk of the programs the coordinator deals
with. The union nonetheless argues that the grievor knows enough to do the job in
light of what the job actually requires. We must disagree: looking at what the PDF sets
out about the job needs, we cannot find that the evidence allows an inference that the
committee erred in the rating. Respecting category 4, "Research, develop and review
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programs'', the union concedes that the grievor has not previously done this. More
than that, the grievor testified unequivocally that the coordinator "definitely must have
the knowledge and understanding of the discipline" to do this part of the job. Again, in
light of the PDF, the evidence does not allow an inference that the committee erred.
Respecting 5, "Coordinates part-time faculty and part-time staff", the union argues that
the grievor has done some of this already and that her job evaluations in the program
assistant position support her ability here. As we read the evidence, the most it tends
to show is that, from January to June 1992, the grievor "liaise[d] with part-time
instructors and identif[ied] those hired for [the] upcoming semester". And nothing in the
evaluation sheets helps. Finally, respecting 6,. "Counselling and commitment
students", the union argues that, since the ranking is different from the evaluations, the
rating should have been higher. Absent any evidence to help us, we find it very
difficult when studying the evaluations to relate the headings to category 6 on the
committee's ranking sheet. At all events, on the evidence, any student counselling the
grievor has done as program assistant is different from what a coordinator does.
Indeed, the PDF of the program assistant, filed by the union, does not mention any
counselling duties at all. In the end, respecting all four categories, there is insufficient
evidence from which reasonable inferences could be drawn that the committee erred
in the ratings.
It may be that, in light of the previous evaluations, the committee should have
rated the grievor higher on two of the categories the union in argument did not touch,
number 7, "Organization, problem solving and priority setting", and number 8,
"Communication/leadership". If the score on each had been 3 ("Strong in
Qualifications") rather than 1, the total score would have gone up by 50, giving her 150
instead of 100. But the committee had, very generoUsly, given her a score of 1 for
each of categories 1 and 2, "Relevant Education/Experience" and "Technical
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knowledge/understanding'' when scores of 0 ("Does not have Qualifications") would,
as we understand the evidence, have been plausible. The lower scoring would then
have brought the total down to 120. Since there is no evidence about what a passing
score was, strictly speaking we cannot judge whether even the higher total of 150
would have been enough. In opening College counsel said that a passing score was
200, and the union did not disagree. Whether we rely on the lack of evidence or
accept what counsel said, the total evidence does not allow us to infer that an
adjustment of Scores on categories numbers 7 and 8, alone or along with categories 1
and 2, would have made a relevant difference to the committee's final score.
As for the technicality of the questions, we see that eight out of twenty-seven
questions focussed on matters of computer theory and terminology. Some of the eight
and the other nineteen were subdivided, and so we might see that fifteen questions
and sub-questions out of thirty-seven were about computer theory and terminology.
Other than the grievor's bald assertion that the questions were too technical, there is
no evidence to help show what would have been a proper balance. When we look at
the job demands, we can see good reason that many questions should relate to
computers. To support the complaint that nonetheless too many of them did, the union
was bound to introduce evidence tending to show it. That was not done.
Lastly, the qualifications of the committee's members. The union did not touch
on this during argument on the motion. We deal with it very briefly. As we read the
evidence in its light most favourable to the union, we cannot conclude that it would
permit a reasonable inference that the committee members, individually and
collectively, were unqualified to judge her. Indeed, on the evidence, a reasonable trier
of fact could easily find that the committee as a whole was well qualified and that the
choice of members was designed to ensure an informed judgment.
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Before closing, we add that our conclusions in no detract from the grievor's fine
performance in her job as program assistant. The evidence is clear, and we
understand that the College agrees. The issues put to us for decision have no bearing
on that.
The College's motion for non-suit is granted. The grievance is dismissed.
DATED at Toronto this 23rd day of February 1996.
0,J ac'queli¢/b Campbell
Sherril Murray