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HomeMy WebLinkAbout1988-1344.Lee & Savarimuthu.91-09-26%~. ~ ONTA RIO EMP~. 0 Y~S DE LA COURONIVE ~ ;,' . :'.: ' ~'..~ :.. .; [" ' .~ ' CROWN EMPLOYEE$ DE L'ONTABIO '= GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 O~JNOAS $'~EET WEST, SOtTE 2TO0, TORONTO, ONTARIO. M~.G tZ8 TEL£F>HONE/TEL~PHONE.· (4 ~5) 326-7358 180, RUE DUNDAS OUEST, BUREAU 2700, TORONTO (ONTARrO). MSG 1Z$ FACSIMTLE/T~L~COPIE : ~4 ~6) 325- 1296 1344/88 iN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES ¢OLLECTIVE~BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN .. OPSEU (Lee/Savarimuthu) Grievor - a~d - The Crown in Right of Ontario (Ministry of Health) Employer BEFORE: J. Roberts Vice-Chairperson J. McManus Member H. Roberts Member FOR THE N. Roland GRiEVOR Counsel Cornish Roland Barristers & Solicitors FOR THE M. Failes EMPLOYER Counsel Winkler, Filion & Wakely Barristers & Solicitors HEARING'~ May 19, 1989 ' April 18, 1990 May 17, 1990 June 14, 1990 January 4, 1991 Febr~/ary 1, 1991 AWARD INTRODUCTION Thi's is a ~job posting case. The two grievors were unsuccessful in a competition to select 9 incumbents for a newly- created position in the offices of the Ministry of Health, Finance and Accounting Branch, in Kingston, Ontario~ During the course of the several days of hearing in this case, one of the grievors, Mr. G. Lee, was successful in another job competition; however, he maintained his status as a grievor and requested instead of appointment to the position in question, monetary compensation. The other grievor, Ms. R. Savarimuthu, requested either appointment to the position in question Or a re- run of the'competition. For reasons which.follow, the grievance of Mr. Lee is allowed. but the grievance of Ms. Savari~uthu is dismissed. II. GENERAL BACKGROUND In June, 1988, the Finance and Accounting Branch of the Ministry of Health made the following job posting: MINISTRY OF HEALTH CLAIMS PAYMENT AND ENQUIRY CLERKS (Schedule 37,7) (OFFICE ADMINISTRATION 8) $11.91 - $13.24 Hourly OPEN The Finance and Accounting Branch, has openings for Claims Payment and Enquiry clerks. This position processes Assistive Devices Program payments which involves verifying invoices, maintaining computerized vendor, client and payment history files as well as responding to enquiries from vendors and the general public, resolving billing discrepancies. The principle duties involve operating a microcomputer system in an on-line database network environment, processing invoices, tracking payments made by cheque or electronic funds transfer system to registered vendors and clients of the Assistive Devices Program (ADP). Other duties include using the system to maintain history records, tracing payments to responding to telephone/written enquiries from vendors and general public, reviewing payment registers to make adjustments and producing management information and public account reports using a PC and Lotus 1-2-3 software. LOCATION: Kingston QUALIFICATIONS Ability to'operate a personal computer in a multiple user microcomputer network environment, including use of a preprogrammed package, to accurately input data research files and respond to customer service enquiries. Knowledge of a broad variety of specialized office methods and procedures. A knowledge of accounting and banking procedures in order to record advances/recoveries, prepare month-end reports, receive, document and forward cheques for deposit. .Knowledge of customer service routines. General knowledge of Assistive Devices Branch is an asset. Good verbal and written skills to effectively communicate with ADP vendors, clients and employees of other Ministry branches regarding interpretation of new/revised procedures, enquiries regarding vendor billings or payment adjustments. Good organizational skills to accurately maintain and keep Up- to-date the ADP vendor and payment information in order to facilitate easy retrieval for customer service enquiries and production of management reports. Ability to research enquiries through a variety of registers, source documents, microrecords, lists and transcripts. The ability to "trouble- shoot" network based system problems when the operating system is down, to determine the problem area, to assess the extent of the problem and to take appropriate corrective action. Please submit resume/application tO: File HL-47-33-88 Human Resources Branch 49 Place d'A£'mes, 2nd Floor P. 0. Box 48 KINGSTON, Ontario K?L 5J3 OPENING DATE: June 14, 1988 CLOSING DATE: July 5, 1988 .... ... This competi%ion is open %0 bo%h Civil Servants and the General Public within commuting distance of Kingston.. According to the evidence, this'posting was to obtain 9 clerks to deal with invoices and process payments in a new program called the Assistive Devices Program. This. program had to do with the provision of wheelchairs, leg braces, ostomy supplies, etc., to Ontario patients who required them. The core duties of the job were performing verification of invoices, handling enquiries, and processing and issuing cheques for these devices. Incumbents also had a responsibility, according to Mr. Ray Winfield, the then Acting Manager, Medical Payments, to identify problems with the computer system. The clerks were also expected t.Q be able to write letters to vendors to explain why payments were late, missing or an invoice was rejected. Such letters would be written either for the supervisor or for themselves. There also was a degree of computer knowledge required, and in ~his regard the job posting set forth as a qualification the 4 ability to operate a personal computer in a multiple user microcomputer network. As to the depth of computer knowledge which was necessary to perform the job, Ms. Claudette Hamilton, the then Supervisor, Medical Payments, testified that when the assistive devises program section was first started, some time before the job posting, the employees who were assigned to help in the startup primarily performed a data entry fLu~ction. There was some phone contact, she said, between the clerks and the' main office in Toronto if there were some input data problems. As the job in question developed, the function of the clerk became more involved, in the sense that he or she was expected to usea more detailed screen. This involved data entry skills, some type of decision making skills, more Contact with Toronto and in some cases the exercise of discretion in deciding whether to send invoices back instead of relying upon Toronto to do so. Both Mr. Winfield and Ms. Hamilton were members of the panel which interviewed applicants for the job. The third panel member was Mr. R. Anderson, the Personnel Officer for .the Ministry~'of Health in Kingston. ~ When the panel first ~, Mr. Winfield testified, the members- · developed some .of the questions for the written test and the questions which were going to be asked of each candidate in the interview. There were 15 questions for the written test, all but two of which were derived from a standard test which Mr. Anderson had brought with him. There were 4 other parts to the written test, covering such things as language skills, computer terminology, record keeping and error location. Mr. Winfield testified that the same package of questions was used in a competition in January-February of 1987. There were some candidates in this competition who had been in the previous competition, Mr. Winfield said, but none was successful. .,. ~ As to the interview questions, they were as follows: 1. Customer Service Briefly, Would you describe for us your skills and related experience which you feel prepares or qualified you for this position. 2. On July 30, what would you tell a Vendor who has called to say they haven't received their last payment due on July 157 3...~ Personal Computer .- What evidence can you give which would demonstrate to us that your data input accuracy le%el is high? 4. Testing your understanding of computer usage: Tell us about: - a computer program you have developed - a printed report you have designed - an ad hoc query you have run 5. How do you use a computer to help you in your day to day environment? 6. Office Experience Describe for us how you plan your daily work actiVities to ensure that all tasks are completed on time. 7. "Describe for ~us, an achievement which you are especially proud of, where you have helped to improve office efficiency. 8. In a high volume paper flow situation how would you ensure that documents are not lost? Initially, the panel decided that the written test would be worth 60% of the mark assigned to each candidate and the interview would be worth 40%, However, after the interviews were over it was necessary to change these weightings to reflect the' panel's' evaluation of the appraisals of the candidates. Ultimately,. then, the breakdown became 50% for the written test; 30% for the interview; and, 20% for the candidate's appraisal. Mr. Winfield stated that he kept all of the questions in a locked drawer in the filing cabinet in his office. This was also the case, he added, with respect to the marking key to the written tests and the model responses to the interview questions~ At no time prior to or during, the interview and testing process, he said, were these materials ever in the possession of Ms. Hamilton. As to the appraisals, it seems that Mr. Anderson reviewed the file of every candidate who was interviewed and listed at the bottom of each candidate's reference check form his or her general performance rating, if the average of all of a particular candidate's ratings was categorized as "well above standard", the candidate received 20 marks. For a rating of "above standard", the candidate received 15 marks; for a rating of "on Standard", 10 marks; for an average of "below standard", 5 marks; and, for "well below standard", 0 marks. Mr. Winfield testified that after Mr. Anderson initially assigned the marks, he reviewed them against the files of the candidate to confirm that the marks were appropriate, Ms. Hamilton .... testified that she also reviewed the scores and discussed them with Mr. Winfield. She said that her review was for the purpose of determining whether she 'agreed with the points assigned to people she had personally supervised. In connection with this, Ms. Hamilton stated that she agreed with the scores which had been assigned to Mr. Lee ~nd Ms. Savarimuthu. As to ..the two grievors, Mr. Lee was assigned 10 out of 20 marks, representing "on standard" performance; Ms. Savarimuthu received 15 marks, representing an "above standard" general performance rating. Mr.. Winfield stated that Mr. Lee only received 10 marks because there had been no recent appraisals of his performance and his supervisor at the ~ime, who was Ms. Hamilton, stated that he was primarily'"on standard". We turn now to consider with more particularity the circumstances of each grievor: III. MR. GREG LEE Mr. Lee testified that he started with the Ministry as a Gotemp in August, 1981. He worked in several Ministries endin~ up with 'the Ministry of Health, Finance and Accounting Branch/ in 1982. At that time, he was hired on permanently as a Payment Processing Clerk. From 1982 to April, 1987 Ms. Hamilton was the grievor's supervisor. She became his supervisor once again from October, 1987 to February, 1988. During the five-month period from April to October, 1987, Mr. Lee was on special assignment to a higher-rated job designing software for the Finance'and Accounting Branch. This assignment was described in the following letter: MEMORANDUM TO: R. Rey Regional Personnel Administrator Human Resources Branch ).nd Floor, M.C.B. FROM: A. A. Moses " .... Manager RE: Office Technology As you are awarel there have been recent deliveries of .office technology equipment into the Macdonald-Cartier Building. I understand that Insurance Systems Branch does not have the resources to develop client applications for micro computer processing, but rather offer limited support roles. There is office technology equipment in Insurance Accounting and we have a number of manual systems/process which need to be converted to this new technology. To accomplish this goal, I have appointed on an acting basis, Mr. Greg Lee to the position of Group Leader, Stop Payments and Address Change. 'This~action will double bank the position between Greg and the present incumbent Mr. S. Savarimuthu. Greg is one of the very few knowledgeable persons in the Section who is capable, of developing the desired applications. The acting assignment is to reasonably compensate this employee for more complex duties which require an advanced level of office technology equipment and software. I would appreciate your processing the attached 303. The higher rating assigned to the grievor for this period was, as indicated, to compensate him for performing more complex duties ~equiring an advanced level of knowledge of office technology equipment and software. When he returned from this assignment in October,.. 1987, Mr. Lee did not go back to his.. old position. He was one of four employees transferred To the new section involved in this case, the Assistive Devices Program. His new job, Mr. Lee stated, was to learn the new software package and help in the implementation of the new program., He was in this position for approximately four months, and then left on a nine-month leave of absence. Mr. Lee stated that he was still on this leave of absence when he applied for the job in question. He said'that he heard about it through a friend'. During this leave of absence, Mr. Lee testified, he went to Toronto and began working for Mr. Reuben Iwonski, at R.E.I. Woodworking and Design. This job involved helping operate a cabinet making business, using a computer-assisted design package. With respect to this package, Mr. Lee stated, he loaded all the software, set up an accounting package for the computer and made it more user-friendly for Mr. Iwonskl. Every Friday morning, Mr. Lee testified, he would go through the bills and invoices and then decide the order of the jobs to take for the following week. In mid-October, 1988, Mr. Lee testified, he was told that he was unsuccessful in the competition. He also stated that he was told that the main ~reason for his lack of success was that he received only I0 marks out of 20 on his appraisals. (This would appear to be acCurate. Had Mr. Lee received 15 out of 20 instead, his final score would have beene69.79, well above the scores of two L'~ people who were selected for the position. Moreover, his seniority would have required him to have been the first choice. His seniority surpassed that of the actual first choice, Linda Beattie,?. by about six weeks.) Mr. Lee questioned the score he received for his appraisals. He pointed out in his testimony that despite the fact that he had specified Mr. Iwonski as one of his references, the committee had not contacted him. As a result, there was no appraisal of his most recent performance upon which the committee might base a judgment. Further, because of his special assignment in 1987, the latest appraisal the Selection Committee had to work with was given on · August 11, 1986, about two years prior to the competition. Mr. Lee further pointed out that he thought that his 1986 appraisal was unfair and to signify that, he signed it with a notation following his signature stating "under duress" Nevertheless, the appraisal rated his .performance as "above standard". The other appraisals in Mr. Lee's file, however, from 1982-85, tended to rate him' as "on standard", primarily, it seems, to reflect deficiencies in attendance and a certain bluntness in his attitude. As Mr. Winfield testified, the ratings in these appraisals were simply averaged by. Mr. Anderson. Mr. AnderSon confirmed that this was the case and that no real weight was given to Mr. Lee's five month assignment in 1987 as an acting group leader. Nor was there any weight given to an assessment of Mr. Lee's performance in his job while on leave of absence, primarily due to the fact that for some reason the panel could not get in touch with Mr. Lee's then supervisor, Mr. Iwonskl. 12 MS. RANI SAVARIMUTHU Ms. Savarimuthu was the highest-seniority candidate in the competition. Her seniority dated back to May, 1971. At that time, she was a File Clerk in the Supply and Seruices Department. ~hen from 1972 to 1977 she became a Filing Clerk, Medical Claims Payment. From 1977 to the time of the competition, she was a Verification Clerk. In addition to this background, Ms. Savarimuthu also received several cross-training assignments for purposes of developing her skills. From 1982 to 1983, she cross-trained as a Revenue Control Clerk; from 1985-86, an Adjustment Clerk; in 1987, a Stop Payment Clerk and, from October 1987 to May 1989, as a Cheque Adjustment Clerk unde$ the supervision of Ms. C. Hamilton, one of the members of the Selection Committee. In none of these positions did Ms. Savarimu~hu use a personal computer in the course of performing her duties. However, in the Spring of 1988, she worked overtime on weekends performing data input for purposes of getting the Assistive Devices Program into operation. This, of course, involved the use of a computer. Ms. Savarimuthu also added that while she was not given the opportunity to take computer courses during working hours, she was pursuing the use of computers on her own time. In fact, she said, at the time of her interview she notified the Selection Committee that she was taking a course on Advanced Lotus and used on her own personal computer at home the Cantax Tax Package. While she was able to explain her involvement-in the use of a personal.computer in her interview, Ms. Savarimuthu said, the panel -- and, in particular, Mr. Anderson -- wanted to know whether she used a personal computer in the performance of her current job. At. that, Ms. Savarimuthu said, she had to admit that she was not using a~personal computer in her current work. In connection With this, Ms. Savarimuthu indicated that she was concerned about one of the questions which was asked in the interview, This was question No. 4, which read as follows: Testing your understanding of-"computer usage: Tell us about: - a computer program you have developed - a printed report you have designed - an ad hoc query you have rua% Ms. Savarimuthu questioned whether the development of a computer program had any relevance to the 3ob in question, which admittedly was performed only with the use of a pre-packaged program and had nothing to do with the development of any new programs. Ms. Savarimuthu also indicated that she had some other concerns. One of these was the fact that she recognized the spelling an~ grammar parts of the written tests to be almost the same as ones that she wrote in 1971. She expressed concern that this was probably the same written exam that some of the other applicants had written up to three times within the previous six months. If that was so, she said, they were unfairly advantaged. Among Ms. Savarimuthu's other concerns was the possibility- that some applicants knew of the answers to the Written test beforehand. As to this allegation, Ms. Savarlmuthu offered evidence, confirmed by one of her co-workers, Ms. Bella Braganza, that they observed one of the other applicants on several occasions going through Ms. Hamilton's desk during the course'of the evening shift, which ran from '4:00. p.m. to 1:00 a.m. There was also other suspicious behaviour by this same employee and then, on the night before the written test, this employee brought in a book on computer terminology and started asking Ms. Braganza and Ms. Savarimuthu what certain computer terms meant'. The next day, both Ms. Braganza and Ms. Savarimuthu noticed that those same questions appeared in the terminology section of the w~itten test. V. SUBMISSI'ONS OF COUNSEL FOR THE UNION CounSel for the Union submitted that the process used in this case was flawed in several respects. These were as follows: (1) The Mechanical Nature of the Analysis of the Personnel Files It was submitted that it was a flaw in the competition to treat the personnel files in a mechanical way by assigning to each candidate a score out of 20 which jumped in five-point increments according to what level of performance was reflected on the last page of an appraisal, i.e., standard, above stand~rd, etc. As to Mr. Lee, it was submitted, five points would have made him a 'successful candidate. Yet by mechanically averaging his appraisals over his entire government career the panel handicapped him in relation to shorter-term employees who 'might have received one or ~wo excellent' ·appraisals with nothing to counter-balance them. Moreover, it was submitted, Mr. Lee was 'doubly handicapped because the panel did not have before it any recent appraisals., which would have been the' bes% in6icator, in all fairness, of his ability to perform well on the job. Had Mr. Lee received 15 points instead of 10 points, it was stressed, he would have been the first candidate to be selected. (2) Failure to Consider Complimentary Notes in Mr. Lee' s 16 Personnel File It was submitted that Mr. Lee was prejudiced by the fact that no consideration was given to the complimentary note in his file by virtue of which he was assigned the higher rating of group leader for a fiveumonth special assignment in 1987. To i~nore this and focus instead upon the more negative appraisals of the grievor given at an earlier stage in his career, it was submitted, was most prejudicial to Mr. Lee. (3) The Use of Questions in the Written Examination which had ~' Been Given in Prior Examinations It was submitted that the use of questions from prior written examinations not only might have given some applicants an unfair advantage over others, but also gave an appearance of impropriety. Compromising the integrity of an examination in this way, it was submitted, could not be excused on the ground of mere convenience. (4) The Use of a Glaringly Irrelevant Question in the Interview It was submitted that it was totally irrelevant to ask candidates who were interviewed whether they had ever been involved in creating a computer programme. It was clear, it was submitted, that the job did not involve programming a computer but instead, simply manipulating a pre-programmed computer and entering data. 17 To give such a question any weight, it was submitted, introduced a foreign element into consideration and unfairly advantaged those candidates with programming experience. (5'i Lack of Security of the Test Questions, Etc. · Tn this regard it was submitted that the appearance of a breach in security, if not in actuality, was a serious flaw. This is what happened, it was suggested, with respect to ..the apparent rifling of the desk of Ms. Hamilton. (6) No Consideration by the Panel of the Relevant Experience of Candidates who were Interviewed It was submitted that it was not enough for the relevant experience of candidates to be considered in screening out those who would not be interviewed. Ail this did, it was submitted, was to cause all candidates who were interviewed to be treated as if they had the same minimal level of experience. This was particularly damaging to Ms. savarlmuthu, it was submitted, because she had 17 to 18 years of outstanding experience in several different positions in the Ministry. These experiences covered several parts of the job specification for the job in question. In light of this, it was submitted, the panel missed an opportunity to .~make a concrete assessmen~ of the likelihood of success of the candidates in the position. (7) The Failure to gather all of the Relevant Information, Including References, Regarding Mr. Lee It was submitted that the failure of the panel to gather any information about Mr. Lee's performance while o~ his leaue-of- - absence immediately before the competition was highly prejudicial. to Mr. Lee. It was pointed out that not only did the Ministry not actually contact Mr. Lee's most recent employer, Mr. Iwonski, but did not even request Mr. Lee to get in touch with Mr. Iwonski so that the latter could act as a reference for the paneli Considering the small number points which separated Mr. Lee from the successful applicants, it was submitted, this was not a trivial flaw. (8) The Failure to establish the Relative Weights of .the Written Examination, Interview and Appraisals Until After the Examination'were Written AS to this point, it was submitted that if the relative weighting of the parts of the selection procedure were still in flux until after .completion of the procedure, the relative weightings might be manipulated in order to adjust the outcome of the competition. This was a serious flaw, it was submitted, because at a minimum it gravely impaired the appearance of fairness of the competition. As to the relevant jurisprudence, counsel for the Union referred us to a number of cases, including Re Nixon and Ministry of Transportation (1988), G.S>B. #2418/87 (Fisher); Re Glove~ and Ministry of correctional services (1988), G.S.B.' #2571/87 (Barrett); Re~Poole and Ministry of Health (19~8)"G.S.B. #~508/87 (Samuels); Re Quinn and Ministry of Transportation and Communications (1980) G.S.B. #9/78 (Prichard~; Re Skagen and Glemnitz and 'Ministry of the Attorney General (1988) G.S.B. #1934/87, 1936/87 (Springate); Re Hare and Ministry of Community and Social Services (1988) G.S.B. #1530/85 (FiSher); Re Rankin and Ministry of Correctional Services (1988) G.S.B. #1145/86 (Brandt). Commenting upon these cases, counsel submitted that Nixon, supra, stood for t~ proposition that in the past this Board has emphasized the necessity, to consider relevant experience. As to Glover, supra, it was submitted that this case stood for the proposition ~hat appearance of fairness was important in considering the propriety of the selection process and that there was a real'onus on the selection panel to make a correct decision. Thi~" i% was Suggested, included the onus to gather all of the relevan~ da~a, including the most recent performance appraisal of Mr. Lee. In fact. i~ was pointed out that Hare, supra, stood for the proposition tha~ failure of the selec~ion panel to obtain the most recent appraisal of a candidate was a fatal error. 20 As to Poole, supra, it was submitted that this case emphasized that direct evidence of the experience of candidates could not be ignored and that where a selection panel placed undue reliance upon the interview -- as opposed to evidence of experience -- there was a serious flaw. The seriousness of this, it was submitted, was further emphasized in Skagen and Glemitz, supra. Finally, it was submitted, Rankin, supra, stood for the · Proposition that a competition could not stand in light of evidence of actual cheating via access to the questions on an examination prior to candidates taking VI. SUBMISSIONS OF COUNSEL FOR THE MINISTRY Counsel for the Ministry agreed that there were flaws in the selection process in this case; however, he submitted that it was insufficient for' the Union to merely demonstrate such flaws and~ ~' then rely upon them. The onus was upon the Union, counsel submitted, to show a significant flaw, something which would amount to a miscarriage of justice if not corrected. Going on to define what was meant by a "significant flaw", counsel submitted that this was a flaw which, if corrected, likely would result in relative equality between the grievor and the successful candidate. As to this, counsel emphasized, a mere possibility was not enough. For these propositions, counsel for the Ministry relied upon a number of authorities including 'Re Simmons and Ministry of Government Services (1983) G.$.B. #483/82 (McLaren); Re Sedore and Ministry of Transportation and Communications (1984) G'.S.B. #250/83 (Delisle); Re Strazds and Ministry of Natural Resources (1983) G.S.B.#88/83 (Jolliffe); Re Bent and Ministry of Transportation (1988) G.S.B. #1.733/86 (Fisher); and, Re Mountain, Barrell, and MacLellan and Ministry of Health (1990) G.S.B. #629/89, 630/89, 633/89 (Fisher). All of the foregoing cases, and ~n particular Simmons and Bent, it was submitted, stood for the proposition that despite a number of alleged flaws in a selection process, the grievor and union will not succeed in overturning the outcome of a competition unless it was demonstrated that the flaws, if corrected, likely would-result in a finding of' relative equality. For this reason, it was submitted, the competition in Simmons was upheld despite the fact that there was no consultation of personnel files, no consultation with direct supervisors and no application forms. The Board found, it was submitted., that correcting these.defects would not have sufficed~to make any difference in the outcome. .As to Bent, it was submitted, the flaws' included consensus scoring, improper weighting of ratings, and the improper use of a question designed to elicit the view of a candidate on a matter in controversy between the employer and the union. Yet, again, in 22 spite of these defects the competition was upheld because the union had not established that absent the defects, the grievor would have gotten the position. AS to the all~ged defects in the present case, counsel for the Ministry made the following submissions: (1) Personnel Files Counsel rejected the submission of the Union that there was a failure to utilize personnel files. It was emphasized that Mr. Winfield testified that he read all of the appraisals and not just the part which gave the candidates' overall performance rating. As to the alleged Prejudice of Mr. Lee, it was submitted that the~e could not have been any since Mr. Lee's last direct supervisor with the MinisTry, Ms. Hamilton, was on the selection panel and agreed that the summary produced .by Mr. Winfield was an accurate assessment of her appraisal of Mr. Lee. As to the fact that Mr. Lee only received 10 out of 20 points for on-standard performance, it was submitted that only his most recent appraisal (1986) was above-standard. Moreover, it was submitted, there was nothing wrong with scoring in five-point increments. This was a systematic way of doing things and completely consistent with prevailing notions of appropriate scoring. 23 As to Ms. Savarimuthu, it was submitted that she hardly was '- prejudiced since she received a score of 15 out of 20, reflecting above-standard performance. Moreover, it was, submitted, Ms. Hamilton, who also was Ms. Savarimuthu's direct supervisor, agreed with the assessment which she received. (2) Failure to Contact Mr. Lee's Most Recent Employer while he was on his leave-of-absence Counsel for the Mini~try acknowledged that Mr. Winfield did indicate in his cross-examination that it was pOssible 'that a 'favourable appraisal from Mr. Iwonski would have made a difference with respect to Mr. Lee's score on his appraisals, but he emphasized that Mr. Winfield did not say that it would. Moreover, counsel submitted, Mr. Lee's experience in a cabinet making shop was not relevant to the job at hand, which was a clerical job. (3) Failure tO take into account past experience Counsel for the Ministry submitted that the review of the appraisals and personnel files, which accounted for 20% of each candidate's score, was directly related to the.past experience of candidates. The past clerical experience of candidates, it was submitted, ~-also reflected in the interview questions and the written test. What the written test was for, it was stressed, was the possession of clerical skills. 24 (4) The' allegedly in relevant interview question It was submitted that the question regarding the programming of a computer was not irrelevant because it was one of a number of questions designed to elicit the level of knowledge of each candidate about computers. Moreover, it was submitted, the number of marks allocated to this question was too small to' change any candidate's ranking. (5) The alleged breach of security It was submitted that on this matter, the Union did not present sufficient evidence to demonstrate the existence of such a serious situation. It was pointed out that both Ms. Hamilton and Mr. Winfield testified that the examinations .were not in Ms. Hamilton's desk, nor were the scoring keys to the interview questions. ':" (6) The use of questions from previous tests It was not denied that parts of the written tests had been- used in previous competitions and, indeed, may have formed part of th~ civil service examination which Ms. Savarimuthu had written when she entered the Civil Service in 1972. At the same time, it was stressed that there was no evidence whatsoever to show that any of the successful incumbents was advantaged by the re-use of these questions. Indeed, it was pointed out the evidence showed that those who had taken previous competitions from which questions were' repeated had not been successful in .the instant competition. (7) The delay in assigning relative weights to the interview, written examinations, and the assessments As to this~ it was stressed by counsel for the Ministry that the relative weights of the interview an~ examination questions were determined prior to the interviews; all that changed ~hereafter was that 10% was deducted from each to make room for the 20% allocated to the appraisals. VII. CONSIDERATION OF THE ISSUES ~In considering the issues raised by the parties, it seem appropriate to address first the onus upon the Union in a case of this type, where the grievors request either to be placed into the position or to have the competition rerun. Thereafter, we will deal with whether this onus has been me% in the case of Mr. Lee, and, finally, Ms. Savarimuthu. (1) The onus upon the Grievors and the Union In Poole, supra, Professo~ Samuels defined as follows the long-standing jurisprudence of the Board regarding the criteria by Which a selection process is judged: 26 See, for example, MacLellan and DeGrandis, 506/81, 507/81, 690/81 and 691/81, wherein the jurisprudence Ss summarized at pages 25 and 26: 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 insofar as is possible. For example, interview questions and evaluation forms should cover all the qualifications. 3. Irrelevant factors should not be considered. 4. Ail the members of a 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; Qui__~, 9/78; Hoffman, 22/79; Ellsworth et al, 361/80; and Cross, 339/81. Id. at pp. 3-4 Of course, few, if any, competitions perfectly satisfy all of these' criteria. This is where the task of the Board comes in. It is a particularly difficult task because invariably it involves differentia ~in§ between the following two types of cases: . (a) Competitions in which the successful incumbent and grievor are separated by a wide margin; and, 27 (b) cases in which a narrow margin separates them. In most wide-margin cases, it is very difficult for a grievor to achieve total! vict0roy, in the sense of being placed in the job. First, the grievor must show that the competition was so flawed as to be fundamentally unfair, and hence invalid. Secondly, the grievor must show that if the competition had been run fairly he or she would have been the succe'ssful candidate. If the grievor fails to make this second showing, his or her relief will be .limited to a re-run of the competition. In most narrow-margin cases, the situation is different. The grievor does not need to show that the entire competition was so flawed as to be fundamentally unfair. He or she only needs to show that there were enough flaws in the competition to render meaningless the narrow margin between the winner and the grievor. In such a case, the grievor will be placed into the position but the entire competition will not be invalidated. We emphasize the distinction between these two types of cases because they both arise in the context of the present arbitration'. The case for Mr. Lee is a narrow-margin case; that for Ms. savarimuthu is of the wide-margin variety. The authorities cited by both sides in the p~esent may can be distinguished in this fashion. For example, the Nixon case, cited 28' by counsel for the Union, was a narrow margin case in which the Union did-not seek to invalidate the entire competition but rather sought to show -- successfully; we might add -- that there was enough of a defect in the evaluation of the grievor to invalidate the margin between him and the successful incumbent. On the other hand, .the Simmons and Sedore cases cited by counsel for the Ministry, were wide-margin cases where the main contention of the Union was that the process of selection was so flawed as to invalidate it as an adequate mechanism for deciding 9mong the competing appliCants. VIII. MR. LEE As previously noted in this award, the main reason for Mr. Lee's lack of success in the competition was-that he received only 10 marks out of 20 on his appraisals. Had he received 15 out of 20 instead, his final score would have been 69.79, well above the ~cores of two people who were selected for the position. Moreover, his seniority would have required him to have been the first choice. His senioritY-Surpassed'~hat of the actual first choice, Linda Beattie, by about six weeks. On the evidence, the Board' is convinced that the receipt by Mr. Lee of 10 marks on his appraisals was as a result of a defect 29 in the panel's evaluation of him, and that if tha~ defect had not occurred he would have received 15 points. The panel did not have before it any appraisals of Mr. Lee which were less than two years old. The latest appraisal was given in 1986. No meaningful consideration was given tO the fact %hat from April to October, 1987, Mr. Lee was specially assigned to a higher-rated job and appointed an acting .group leader. Further, Mr. Lee's performance in that position was not factored into the panel's assessment, nor was his subsequent performance during his nine-month leave-of- ~bsence working for Mr. Iwonski. While Mr. Anderson indicated that he attempted to get in touch with Mr. Iwonski, it was undisputed that after encountering difficulty in locating him no one contacted Mr. Lee to obtain what, we conclude, would have been his ready assistance in so doing. Given the fact that in his 1986 Assessment Mr. Lee was rated as above-standard and that subsequently he was appointed an acting group leader .in another position, we have no difficulty in concluding that Mr. Lee should have been awarded a score of at least 15 out of 20 points in the appraisal category. As already indicated, if'this had been done he would have been the first candidate selected. Accordingly, we award Mr. Lee the remedy which was sought on his behalf, i.e., monetary compensation for the difference in rate of pay between the job in quest/on and the position in which Mr. 3O Lee was forced to remain by virtue of not being selected,, ,plus interest calculated in the usual way. xI. MS. SAVARIMUTHU As previously indicated, Ms. Savarimuthu was very far down in the ranking of candidates for the position in question. It appeared from the submissions at the hearing and also from our own revzew of the evidence that her's was a wide-margin case in which the thrust of the presentation was toward seeking a re-run of the competition based upon a multiplicity of flaws, which, it was said, rendered it an inadequate mechanism for deciding among the competing applicants. There were indeed a number of flaws. Chief among them was the way in which the panel chose to assess the personnel files of the candidates, Averaging the performance ratings on the appraisals~ -' was bound to place at a disadvantage long-term employees who had, over time, improved their performance. Similarly, including the written examination questions which had been used in previous competitions introduced another potential for disadvantage. We agree with the submission 'of coUnSel for the Union that those candidates who were in the previous competitions might well have had an edge over the others. 31 ° We also agree that a glaringly irrelevant interview question was used,, i.e., that r~lating to whether a candidate had ever been involved in creating a computer program/~e. The job in question did not involve anything to do with p~ogramming a computer, but rather merely manipulating and entering data in a pre-programmed format. This was a foreign element which was introduced into the .- consideration of the panel. We do not, however, agree that there were glaring defects with ~espect to the security of the documents or consideration of the ~ relevant experience of applicants, including Ms. Savarimuthu. As to the security of the documents, we accept the evidence that th~ test questions/ marking key and model responses to the interview questions were securely maintained prior to and during the interview and testing process. They never were at any time in the possession of Ms. Hamilton. While there certainly was evidence that an employee~may have attempted to breach security by rifling Ms. Hamilton's desk while she was away from the office, the evidence does not support any conclusion that this attempt was successful. Accordingly, we cannot say that this was something which impugned the integrity of the process. As to the consideration of relevant experience, we accept that there was a complete review of the personnel files of all 32 applicants and that relevant experience was further assessed in the written tests and interview questions administered to all candidates. With respect to Ms. Savarimuthu, we also note that her direct Supervisor, Ms. Hamilton, was a pgne.1 member and would have been familiar with the past experience of Ms. Savarimuthu. Further, while it would have' been more appropriate for the- panel to have decided upon the weight of the.appraisals prior to the intereviews, we do not see this as any more than a minor defect in the circumstances of this case. Considering the entire process, we must conclude that overall, and despite the flaws which we have identified, it was not inadequate as a mechanism ,for deciding among the competing applican~s. Nor were the defects especially prejudicial to Ms. Savarimuthu. We note that she received 15 out of 20 on her appraisals; none'of the successful candidates had previously been.'??· in competitions from which some of the examination questions were drawn; and, the weight of the irrelevant question was so small as not to have had a meaningful impact upon a candidate's final score. Accordingly, the grievance of Ms. Savarimuthu is dismissed. As to Mr. Lee, we will retain jurisdiction pending implementation of our award. DATED at London, Ontario, this 26th day of September, 33 J. McManus, Union Member H. Roberts, Employer Member