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1989-0716.Hall & Powers.90-12-07
CROW/V EMPLOYEES DE L'ONT,4RIO GRIEVANCE C~MMISSION DE B ffi S~LEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUtTE 2;O0, TORONTO, ONTARIO. USO 1Z8 TELE~oNE/TELEP~ONE.. (4 ~$~ 326-~358 180, RuE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO,I. USG '[ZS FAC~IMILE/TEL~*CO~iE. f4 r6~ 325- ~96 716/89, 866/89 IN THE MATTER OP AN ARBITRATiON Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD' BETWEEN 'OPSEU (Hall/Powers) Grievor The Crown in Right of Ontario (Ministry of Correctional Services') Employer BEFORE: M. Gorsky Vice-Chairperson M. Lyons Member M. O'Toole Member FOR THE K. Whitaker GRIEVOR Counsel Ryder, Whitaker, wright & Chapman Barristers & Solicitors D..Eady Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE J.' V. Whibbs EMPLOYER Regional Personnel' Administrator Ministry of Correctional Services HEARING: December 11, 1989 May 3, 4 1990 Septe~ber 21, 1990 p~CISION. T~e grievors. A.D'. Hall and George Powers, filed Sel~,erate grievances alleging a violation of article 413 of the collective agreement with respect to the failure of the Emp]oye~, as a result the're-run of a .job competition, to award them the position of Annex Correctional Officer at the Mil!brook Correctional Centre, which was advertised in an Opportunity Bulletin which is a~exed as Appendi× There were three candidates for the posted position: the two grievors and the successful candidate, Kevin Nesbitt. The results of the scoring in the original competition by the committee assessing the qualifications and ability of the three candidates rated'Mr. Nesbitt first, Mr. Powers' second and Mr. Hall third, and recommended thai the position be awarded to Mr. Nesbitt, which was done. Messrs. Hall and Powers filed seperate grievances, each claiming that he should have been chosen by the Employer, who was alleged to have failed to carry out its obligations pursuant to article 4.3 of the collective agreement which provides: In filling a vacancy, the Emp!oye~ shall give primary cdnsideration to qualifications and ability to perform the required duties. Where qualifications and ability are relatively equal, length of continuous service shall be a consideration. As ,~ result ,Df a settlement- of the qrie~.,xnc.~,_ , - ~-~ it was agreed that the competition would be re-run anal this was done in April of 1989 with the same applicants and with the same regtllt. which led to the filing of the two ~r~evances referred to, Mr. Hall's seniority is June 1977, Mr. Powers', June 1984 and Mr. Nesbitt's, August 1986, The parties agreed that the grievances of Messrs. Halt and Powers would be'heard together. In his grievance, Mr. Hall took the position that his qualifications and ability were relatively equal to the other two candidates and that he ought be awarded the position because of his seniority. Mr. Powers took the position that his qualifications and ability were relatively equal.to those of Mr,Nesbitt and that because of his seniority he ought to be appointed to the position over Mr. Nesbitt'. It was also submitted that Mr. Powers' qulifications and ability were greater than.those of Mr. Hall, and that notwithstanding Mr. Hall's greater seniority, he ought to be appointed tO the position because his and Mr. Hall's qualifications and ability were not relatively equal. Although the filing of their grievances make Messrs. Hall amd Powers adverse, in interest. Mr. Powers indicated that if Mr. Hall was successful in his gr'ievance as it relates to the appointment of Mr. Nesbitt. then he would withdraw his ~ri~vance. If Mr. Hall was unsuccessful, then Mr. Powers wished to have grievance adjudicated upon with.respect to his claim against Nesbitt, The position specification and class allocation form with respect to'the posted position is annexed as Appendix On the re-run of the competition the candidates for the position were assessed on the basis of their performance on an oral test, referred to as an "interview", which was out of a total of 64 marks; a written test, in the form of an essay, which was out of 36 marks; and an experience rating, worth up to 15 marks: the total available marks being 115. According to the summary sheet for the re-run (Exhibit 15), the following' was a breakdown of the test scores: Summary Sheet 64 36 15 Total Interview Written Experience K. Nesbitt 48.1 25' 15 88.1 g. Powers 39 17 15 71 D. Hall 25.6 10 !2.5 48.1 The interview questions and answers are annexed as Appendix "C" The written exercise and desired response are annexed as Appendix "D" and the experience rating Js annexed as Appendix "E". Mr[ Whitaker, on behalf of Mr. Hall. t<,ok the that the re-run of the competition was fundamentaily flawed in that the evaluation p~ocedure followed by the Employer- did not properly identify the qualifications and ability which were relevant to the performance of the position. He stated that the factors relied upon by the Employer did not reasonably arise from the duties and responsibilities of an Annex Correctional Officer Of particular concern to him was the-fact that little consideration was given to the fact that Mr. Mall bad, since- 1979, frequently served as an Annex Correctional Officer and had performed the very same job that he was.applying for, and that his job performance had been regularly evaluated by his supervisors. Mr. Whittaker submitted that this .represented the most cogent objective evidence as to Mr. Hall's qualifications and abilities as they related to the performance of the posted position and that rather than give this factor principal -. consideration, the Employer allotted some 13 per cent of the total marks available to the experience factor. Of this 13 per cent, no attempt was made to obtain evaluations from the applicants' supervisors as to how well each of the applicants performed the Annex Correctional O.fficer's job. Of the 15 marks alloted for experience, 10 marks were given merely for having served as a Correctional Officer 2, without any consideration be~q q~ven to how t~e performance of each of the candidates while performing as a Annex C,>rrectio~]a! Officer ~emonstrated Mr. VPr~itake~'- ~'eff~'r~-.t to the feF't i:h,~,t Mr. Hall's ,-.'..,e~ eleven ye,iFs as.a Correctional Officer 2 were worth no more t~an Mr. Nesbitt's some two ye'ars of experience, He submitted that this was not a case where seniority alone was bein~ relied He emphas~.~d that the experience he wes re~ying upon bore directly on the question of which camli4ete had the greatest ,.~ul!fic.~ti,:.,ns ,and ability. Mr. ~itakeN also referred to the ~hat there was ,~vei~able -,b~-tiv~ evfi,4~-c~.~.,,.= from supervi which was not pPoper!y etitized by the Employer. es to how the applicants had ectu~tly demonstrated their qualific,~tions end 'ali lit7 to perfor~ the posted position. At least in the case ~..,~ Me- ~'~. Hal~ Mr ~s.~ . and . Powers. there were periodic ev~uations mv suo~.'v~n~'~ relating to their job performance in ~ variety of ~-eas re~ated to their work which appears t~ have been given weight~ by t~e_., reoresentative~. ~ of the Employer. in +he,.. , ca=_.e ,},!! three eppl'icants, there wes available evidence from SL~DPrvisOYS eS to how their, actual performance-on the job bore their qualifications and ability, however no such evidence wes called by the Employer. who relied entirely on the test scores. including the experience factor referred experience. The qualifications and ability of an applicant as disclosed by actual job perfc,~mance did not figure in tt~e assessment of .their relative qualifications and ability. The Employer acknowledged that afl of the a~Dlicants were qualified to perform the posted posit~on., Having made that assessment, 'the selection committee proceeded, t0 administer the test, and score it making allowance fo~ the e×per~nce factor. Indeed, it would be d~ff~cu]t for the committee to treat any of the candidates as bein~ unqualifed to perform the Annex Correctional Officer 3ob as each of them had sat~factorily performed it on numerous occassions. Notwithstanding the fact that Mr. Hall had satisfactorily performed the duties of,the posted position when assigned there from time to time since 1979,~ does not appear ~o have ~een picked up by the test. His test score on the interview and written port~ons of the test of 35.~ out of !00 marks waM agreed to indicate that a ~erson receiving such a score would no[ tJkely be.able to adequately perform the job in the absence of evidence to the'contrary. This would still be the case when addin~ the experience factor to the score~ Mr. Hall's uncontradicted evidence was that his annual evaluations conducted by his supervisors ~ave hJ~ am average job performance rating of :3,75 out of a possible 4. AlthouGh Mr. Hall's usual job as a C.O.2 wes 2n the maxlmu?{: secu¥~t? s~ctf?,s~ q,f the .Centre (frequently. referred te duui!-?_[ ~]le c<.,qNs{} ,-~f }h~!, evidence as "inside"}. there was no evidence to show that hi? evaluations were limited to the work within the max:~m_~m SeOUFJ.t~/ section. It was open to the Employer to call evidence to refute Hr. Hall's assePtions relating to the embit ef his evaluations. but it did not do so. Hr. ~itak~r submitted that as a consequence ,}f the flawed selection procedure, the test scores could not be relied upon as any kind of an a~curat~ indicator of the candidates' relativ~ qualifications and ability to perform the duties of the oosted position. Hr. Early. counsel for Hr. Powers. did net t.~ke ,issue. w~ith the test itsel{ but limited his criticism~to the we.v i~ was scored. He indicated that he wouid be ar~u~in.~, that when Mr. Powers' answers were considered along with those of Hr. Nesbitt. i~ would be demonstrated that their' qualifications and eb,it,ltY C,:: per'form the required duties ef the posted position were re]e~J,;e]:z equal and that Hr. Powers' seniority wa~s suf~icien..'. ~.e require that he be .gwarded the position. ~:',h~"r'xe,.i ,",,,~' :ts 2.-e:~=:!>,>:-~sibilJti~~- uFzdel"' articke ,2 2,: th,.~t t* through reliance on the written and interview tests and the experience factor, considered all of the evidence that was relevant to the question of whether the qualifications and ability of the three candidates to perform the required, duties of the job were re'latively~ equal: that it had not considered irrelevant evidence; that its decision was carried out jn good faith; that the test was a fair one and was fairly administered, in that it fairly considered and evaluated the qualifications and ability of all three' candidates: and that the decision arrived at, based solely on that evidence, was not only one that a reasonable employer could have arrived at, it was the correct decision. Mr. Hall, as has been noted, has seniority from June of 1977, After serving his probationary per~od he obtainsd Correctional Officer 2 status. After serving on the general duty. roster, he was appointed an ActinG Corporal and served in that capacity from 1979 to 1981. He testified that as an Acting Corporal he was responsible for the supervision of correctional officers throughout the entire institution, there being o~ly one corporal assigned per Shift., During the morning detail there were approximately 25 correctional officers who were supervised by Mr. Hall, who was accountable to the Shift Supervisor. Mr. Hall also testified that around-the year 1980 he acted as a relief Shift Supervisor for ar, proximately 5 days. time. . served en tNe Cer~er,~i d~l~v, r~,"+~,~: ..... ~t the Correctional Centre. He testified that during t%te times that he serged as ~n %ctJng Corporal and as a relief Sb~ft SupervJsk, r there were no concerns expressed to him by management about his carrying out th~ duties and responsibilities of those posit~ons. MP. Hall test~ified that the correct~ionai ef~:?ers employed as. part of the genera] duty roster Nave a number of uoss~bte duties ta which th~,~ can be assicned He =:tared tha~ he has. during the course of his' employment, performed a~i of them.. Mr. Bi!! Cooney. the Deputy .Superintendent o.~ the .Mil ibroek Correctional Ce.~{tre since 1986. testified that Centre is a provincial maximum security institution for effeuders who have been sentenced to terms of two years less a day and he described it as a provincial catchment institution. The C:~n~re has a total capacity of 262 inmates %~ho are kept in t.h~ maximum security area. and uu to i2 minin'~um security inmates who ~]u.l~rteFed in the Anne:-: wN~re the Anr~e:.: ,?orrectl,)nal Offi::'vr ::'tel · ' i0 with the Employer working in the maximum security area of tl~e Centre, The Annex, as it now Junctions, assumed its character early in 1978, ~lthough the program has evolved since that time. The approximately twelve inmates sent td the Annex are first screened after a review of their files. The inmates chosen have between 60 and 90 days of their sentence lef.t to serve and they must disp!ay a positive attitude towards their rehabilitation. The screening, which is performed by Mr. D. Roy, the Chief Social Worker at %he Centre, is reviewed by 'the Annex Selection Committee made up of the Senior Assistant Superintendent. the Annex Manager and Mr. Roy, and they recommend to the Superintendent the ~nmates to be chosen. Inmatez proposed for the program are then interviewed and the conditions of placement explained to them. Although correctional officers function in both of the areas at the Centre: maximum security and in the Annex, there are differences between the two programs. Nevertheless, all of the correctional officers at the Centre have a pPincipal responsibility for the care, custody, control and supervision of znmates in whichever program they function (inside and ~n the Annex). One of the s~gn/fJcant differences is that [r~s~de the institution there i$ a much more ~tructured and controlled environment and the rules that are required to be enforced and followed are less flexible than those which apply in the Annex. Correctional officers working in the maximum security section have a greater resort to supervisors and additional physical security, Annex officers usually work alone and supervise inmate work parties off the institution's Grounds during the day from. Monday to Friday. On weekends and in the evenings from Monday to Friday, correctional officers in the Annex tend to work alone supervising inmates during their leisure time activities. Because the Annex program is one aimed at reintroducing inmates to life in the co~nunity, the Annex staff has a special responsibility in this area. The inmates in the Annex program work in the community performing functions for elderly home owners and service organizations, and are also engaged in certain planting and harvesting functions. The Annex staff must have special qualities to motivate inmates and assist them to work in the community, often by example wh'ile working alongside of them. 'Because the ·Annex program operates in a minimum security setting, there are more areas for independent dec~sion makinG on the part of correctional officers, frequently in the absence of readily available supervision. There is 'a difference in the environme~*~t for inmate~ 12 between the inside and Annex programs, and inmates, not infrequently, experience difficulties adjusting t~ the les's rigid minimum security setting, This places a special r~sponsibil~ty on a correctional officer functioning within that Program to ,, respond to the special problems experienced by inmates. The relationship'between inmates and correctional officers in the Annex program is much more personal than is the case in the inside program. Because the Annex program involves certain farm operations, it is sometimes necessary for the CQrrectional officers to operate farm tractors and other Annex machinery, including a five-ton truck, while carrying out their duties. The ~nnex officer must have a general knowledge of the Set-up operations, maintenance and safety of the machinery and equipment used in p~anting and harvesting c~ops, snow removal and qrass cutting. The Annex staff must supervise inmates in the operation of the equipment, including, the safe operation of small power tools, including iawnmowers0 weedeaters, and hedge trimmers. M~nor preventative maintenance and the making of small repairs are part of the correctional officers duties in the Annex. The correctional officers jn the Annex program will have more contact with persons i'n the co~nmunity while supervising ~nmates performing vo]un'teer work, Therefore, the kind of con~unicatio~l expected of a~ correctional officer wjth~% the institution and in the Annex program, are somewhat different. The inmates screened and entered into the Annex program are low security risks considered to be much more capable of being trusted than inmates on the inside of the institution. Approximately 504 .of the work performed by inmates as part of the Annex program relates to ground mafntenance, 309 of their t~me ~s spent in the community performing volunteer duties, and approx-imately 204 relates to the' farm program. There is an Annex Manager, who is part of management and is classified as an 0.M.14. There is also a civ*ilian driver, a correctional officer driver and five non-driver correctional officers. The posted pos~tion falls within the last mentioned group. The day shift iS comprised of the Manager, the two drivers and two correctional officers. The evening and night shifts are comprised of one correctional officer for each shift. The Annex Manager assigns jobs within the program to correctional officers. Mr. Hall test/f/ed that when he served as a non-driver correctional officer in the Annex, he'made minor repairs to ~. vehlcles and stated that major repairs'were performed by a private repairer. Mr. HalI~s uncontradicted evidence was that only very minor repairs were performe~l by ~he ~on-dr~ver correctional officers. 14 Mr'. Hall testified that he had. as part of his regular' duties while in the maximum security section of the Centre been transferred to the Annex program from time to time from.i979 to the present, and. that he spent between 25 and 30 days per year in the Annex program, which has Operated in some form since 1978. 'He testified that in 1989 he spent a. period, of seven months i.nL - the Annex. Prior to being sent to the Annex, he was not told how long he would spend there, but was merely informed that he Would be sent there as.part of his regular responsibilities. Except for a period of 21 days between April and November of 1989, the rest of his time was spent working in the Annex program. We have considered Mr. Hall's ecperience working as an Annex Correctional Officer to the date of the Grievance. His uncontradicted testimony was that the duties performed by him in the Annex w~re "generally the same" as those that were performed there at the time of the grievances. He did refer, however, to the fact that more land had been'cleared for the cultivation %f Potatoes. Mr. Hall stated that he worked for three different Managers in the 'Annex and that all of them indicated that he performed the job well and that he knew what had to be done in order to carry out the program. Mr. H&ll testified that he has received the regular' one-year personnel performance reviews conducted by his ........ 15 supervisors since the commencement of his employment. He stated that the reviews' are marked out of 4 and that his average'score during the course of his employment was 3.75. and that no concerns were exp'ressed to him by his supervisors during any of the personnel performance reviews. The only negative.comment in Mr. Hall's employment record iS a reference to his having once sworn in the presence of an inmate some five to seven years ago. There was no evidence to undermine Mr. Halt's testimony' concerning the nature of his personnel performance reviews, or the comments made to him by his supervisors concerning the performance of his job. Mr. Whibbs submitted that we ought not to give much weight to the average rating obtained by Mr. Hall durin~ his performance reviews, It was suggested, without any avidence being called to support the suggestion, that most correctional officers received around 3.75 out of '4 on their reviews. There was no evidence to show that this was the case,. The annual performance appraisals were conducted by representatives, of the Ealployer, and in the absence of evidence to show that they do not accurately reflect the evaluation of the performance of an employee, we must conclude that Mr. Hall co~usistent]y received excellent appraisals, and that they involved the totality of his functions within the ma×~mum 16 security program and within the Annex. Mr. Whibbs did not take issue with Mr. Hall~s evidence concerning the average rating received by him on his perfomance appraisals but argued that the appraisals only related to the performance of Mr. Hall's duties and responsibiliti~s in the maximum security section of the Centre. We received no evidence to demonstrate that Mr, Hall's performance reviews were limited to his~work on the'inside of the institution. If that were the case, we would have expected' production of the performance reviews showing that they were limited to only some of Mr. Hall s job performance, or other supporting evidence to show that the reviews did not cover Mr. Hall's total functioning as a corrections officer. There was no evidence given on behalf of the Employer from supervisors within the Annex program which would conflict with the performance ratings that were cited to us, The Employer would have the means of producing records and evidence from supervisors to contradict Mr. Hall,but did not do so. We must, therefore, concl'ude that Mr. Hall's performance in the Annex'was included in his personnel performance reviews. Mr. Powers testified that during his period of employment with the Employer he has spent approximately seven to eight ~onths in the Anne>: during all seasons and performed all types of work within the program, the longest single stay bei~g for three weeks. Mr. Nesbitt, who was present at, and participgte~ in the hearing, testified in his own behalf. Mr. Nesbitt~ after he completed his probationary period in December of 1987, applied to the Sen~or Assistant Superintendent to serve as a r~llef officer in the Annex. His request was approved and he served a five- month placement from February 1988 to. June of 1988, when he competed for~the posted positiono ~and he has subsequently acted as an Annex Corrections Officer.~ One of the question that we. have to deal with'is: Has the Employer looked at all relevant evidence bearing on the question of the relative qualifications and ability of the candidates tO perform the required duties of the posted posit~on? The Grievance Settlement Board has long accepted the propriety of properly prepared'and conducted tests in evaluating candidates' qualifications and ability under article 4.3. Where candidates have not performed the actual job being sought and there is little valid objective evidence of their actual performance on that job, a properly prepared and administered test represents a sensible means of assessing qualifications and ability. Qualifications and ability manifested in other circumstances may be useful guides, but, in the absence'of actual functioning in a posted position, they could not have the same impact as the actual performance of an applicant ~n the very job being the subject of the posting. t.'.suat]v ha?iP..~J bee.q pye.oaFed by p~.~q,r~s who h~ve nc, t hc~d sr,~p~lv validated That is they are usually tests'~re~a~ amateurs albeit usually amateurs with knowledge Of the ,~ualifications and abilities required to r~rform the ~ssociated with the job.. However. if those who [,repare and administer .the test meet certain criteria, tests have been civen consideable weight in assessing q~atifications and ability?. Brown and Beatty.Canadian Labour Arbitratfon (Th~<-d Ed!tiort~ ,~ .~z para. 6:3340. Panels of the Board have not i~sisted that the creation, administration and evaluation of a test be an exercise in perfection. At the same time. in looking for objective evidence which would assist a panel to evaluate the candidates: qualifications and ability where the ',',~ candidates have had substantial ongoing experience, and wh.et'e their- performance of the job has bee~ ..... observed ~,i. reviewed representatives of the Employer. the evaluation of the candidates' actual ~erformance on tl%e job usually mus't be D,'e~erred to a test especial Iv where the' test r,f actua~ experience on the jo~ conflicts ~ith the more theoretical {Infc. rtun'.atel,..,. 'the Em~_iover in ,:arryinc cl~ll~l~,...!g: '~'~' ,-,~'r,~ .~ ('C'i':' ?(;~'!"a]2] I.~ ['~I' ~,',,1 i'~ 3' ~,~ ..... t t']'t6~ subject ef the gosting. They else had the means of ~. -~e ~ ~ ~ . OI!~V Jell 01_lt Of Oils h~mc!re4 and fifteen marks were aiven to an applicant who had c. btair~ed tb.~ status of a Correctional Officer 2. As far as can be determined. no attemgt was made tc evaluate the qualifications ~nd ;~-~] ~-, -.~ ~%~ a~poiicants ~,-~ ~rform the required duel-s and responsibilities cf the position based on tt~eJr actual performanqe of the Annex Correctional Officer job. On the evidence, we must find that Mr. Hell net only ....... O~ ~ .... extreme oerf~,rm~d the work of an Annex Correctional '~f ~-' well when' he was required to oerform that job. but that he seen to 40 so by his supervis.ers. There was no s,~ggesti,.>r~ that either ef the other two apr, l~cants were e,.,a~,~ated en the bas~s ..,~ their eh-the-job performance as b~ing an,/ better than Hr. terms of their qualifications and abJ!Jty to'perform the dutY. es of the job. Nevertheless, we are asked to virtually ignore the ~'-ea[ irv of actual on-the-jeb perform,~nce ~-~ fa,/,}ttF ,;.f .~,~ ~'.'..d ,-,~'~! teszs, The tests m~,.,' ]l-uie~'% ,-':,r~.~,, ,- ....... ~ ,.-,,",~: ff'~"~ ~ ~ ~' "~ r L~.~ .. .... _ r .... i .... %vh{ ,-' h ,~ ~ _~'~ ..................... w m J .~ r ,~,.i TA,',v;~/~t.' :.ll-: i ~ l~ - i}'1 .~'~'~ 1 iL.~, ......... i ,-,,-, ~'!~.". WhJbbs. for' the Em.u,l::,¥er. i!?./i~,d us ~,:', ?e,.~,-tr,i ~.b.,- test SCOa'es obtained by the applicants as a valid reflection of their ~e!ative qualifications and abiifftv to perform the duties o.f the posted position. Thus. when Mr. Hall's test score was compared to the scores of 'Messrs. Nesbitt and Powers. ~t wea-. clear to the selection committee that Mr. Hall's and ability ~ere nowhere near re!~tff,/efv equal to those ~:,f Mr. Powers or Mr. Nesbitt. That-is. we.are aske,i t::, virtually iqno~*e the actual functioning'of the candidates on the job bein:.~ sought ~nd to place the greater part of our reliance on the written and oral tests. Wn.~tever the validity of the teszs, ir: the case b.efc.re us we must not ignore the objective evidence arrived ,bt when assessing the cand/~lates' actual performance ,.~I the job. 'Fc,~ whatever reason. Mr, Hail did extremely oooriv on the interview and written tests. In the absence of objective ..eviden:~ Sf .~-fuaI Job o~formal!ce we would have to m,~nd more e ime e,/aiuatinc~, the ~-ooriet,/:~... . of the test'as a means of e,.,a!uae~'-....,~ the reiat~ve qualifications and ability of the c?.n:!idates ;s.s t. hev ,~"ai::.t, ttom:: the t'e a::i,/e q,~:slifi,'.~e~,-,n:~:.. ,... .-,n,.i_. a!:. i !.i * ,,._ .. ,:,f ~he. candidates to perform the required duties of 'the' posted p,)sit~on. .In the circumstances of this case' the test score of Mr. Hall appears to fly in the face of his objective record of . job performance, which is relevant to. the question of his relative qualifications and ability to perform the duties of the posted posit~on. Based on his performance on the test (the answers, to the oral questions on the interview and his written essay) Mr. Hail's qualifications and ability to perform the job wouid appear to.extre~enly limited. Hfs uncontradicted evidence concerning his experience and the objective evaluations received by him while actually performing the job ought to have indicated that the test had not done an adequate job, in his case, of assessing his qualifications and ability to perform the job relative to the other candidates. There is frequently an appearance of ~airness and objectivity in a 'test intended to assess the relative qualifications and ability of candidates to perform the duties of a job. This, no doubt, contributes to the frequency of use of tests. It avoids many challenges based on alleged subjectivity in the evaluation process, But tests which~ at best. assess the potential of candidates must be used with care. This is especially so when~ as in the case before us, there is evidence of evaluations o~ actual job performance performed by reoresentative$ of the employer which evidence was not seriously 22 challenged. No evidence was adduced to demonstrate that the evaluations referred to by Mr, Whittaker did not deserve the weight that they appear to'have been entitled'to. Instead, the Emp!oyer maintaiuned throughout the 'hearing that the test which it used and the maner of administering it were adequate to properly carry out its responsibilities 'under article 4.03, This position was maintained even when, the test score obtaihed by Mr. Hall was contradicted by the Employer's own periodic evaluations and the other evidence before us relating to job performance. It ought to have been clear that the test did not come close to disclosing Mr. Hall's relative qualifications and ability. For the reasons set out.above, and on the special facts of this case. we cannot agree with !ew. Whibb's submissions concerning the reliance on the test to the ritual exclusion of readilly available objective' evidence of job performance, We do not expect the Employer to carry out its reponsibilities according to some paradigm of perfection. Although Jt acted .in good faith, by virtually ignoring the evidence of actual job performance, it neglected to consider significant cogent evidence necessary to properly carry out its responsibilities under article 4.03. Since 1979, Mr Hall has spent significant periods of time performing essentially the same 3ob that was posted. His overall performance rating averaged 3.75 out of a maximum of 4. On the evidence, there was not much. room for improvement. Ba!ed on the evidence of actual job performance, what .! makes the qu lifications and ability of Mr. Nesbitt to perform the job so suPerSor ~o ghose of ~r, Hall that they cannot be sai~ 'to be~ relatively equal7, We had an opportunity to observe Mr. Nesbitt and ~here ~s no doubt that he is very ~ntelligent and articulate. From his evidence we would conclude that he performs the ~ob of Annex officer very well and is most sensitive to the different considerations which affect the performance of the Annex and the inside jobs. He has had more extensive recent experience on the job and his farm background and experience with t machinery appears to us to b'e greater than that of Mr. Halt. m Nevertheless( even after considering the differences in emphasis between the inside and Annex pbsitions, they are both m correctionallofficer positions and their fundamental aspects are m the same. That is, there is a good deal in common between the role of a correctional officer whether withSn the institution or as part of the Annex program. In that regard, we cannot overlook the experience of Mr. Hall in dealing with a wide varlety of practical prDblems that arose over th~ years which have yet to. be encountered 5y Mr. Nesbitt. We are. satisfied, that Mr. Nesbitt recognized that Mr. Hall was a repository of experience of how to deal with a inumber of emergency situations which could arise either in t~e inside or Annex'programs. We conclude that this would tend t!o balance out any superiority on the part of 2 4 Nesbitt relating to familiarity with farm machinery ~nd equipment and ~4ith farm~nq _Generaty. When we view the qualifications of Mr. Hail and Mr. Nesbitt based on our assessment of their actual performance on the job, even' if we did find that Mr. Nesbitt'fs qualifications and ability were greater than those of Mr. Hall, we would still find that their qualifications and ability to perform the duties of the job were relatively equal and, given the length of continuous service of Mr. Hai!,.the grievance should succeed. We wish to make it clear that this decision is not to be taken as a general criticism of the use of properly formulated and administered tests by an employer in carrying out its obligations under art'icle. 4.3. Nor are we casting doubt on the test if it were applied in a situation where the applicants had not actually performed and been evaluated ~n the job posted, On the facts of this~case, however, the test can be of little value.~ There may be instances where a selection committee, in circumstances close to those found in the case before us, after having assessed the evidence relating to performance in the posted position by the applicants, may also administer a test to supplement the evidence it has. This was not done in the case 'before us, where the evidence'of actual job performance in the posted job was virtually ignored, and where the test was more 25 ~uitable for candidates who had no actual experience in the posted position. If we were to place greater reliance on the test " scores, we would be doing so on the basis that we were uncertain about the evaluation of the actual performance of the applicants for the posted position. On the basis of the evidence bef'ore us, we are not uncertain as to the demonstration of the applican'ts' qualifications, and ability to perform the posted position. There is no reason for us not to rely on the evidence of actual job performance. We also wish to make it clear that We had no evidence to conflict with that recited above concerning Mr. Hall's actual performance on the job when compared with that of the other two ,__. applicants, We are. satisfied that Mr. Hall has demonstrated that he is relatively equal to the other 'applicants as far as his qualifications and ability to perform the duties of the posted position are concerned. To rely on the test in this case would be to rely on a testi.ng procedure which did not even come close to evaluating the relative qualifications and ability of Mr. Hall. and the other two aplicants. The Employer referred to Quinn. 9/78 (Prichard) (at pp. In approaching the application of Article 4.'3 to the facts of this grievance, we recognize that ultimately the function of the Board is to determine with the appropriate standard o£ review whether or not the grievor had demonstrated that his qualifications and ability to perform t~e required duties are relatively equal to those of the other candidates and thus that.his seniority should have been taken into consideration. This Board has on a number of occasions and most recently in Re Remark (149/77) commented on the Board's function in this regard and on the proper meaning of Article 4.3. Counsel for the union expressed his reliance on the statement of the Board's jurisprudence in Re Remark and counsel for the Ministry, while not relyinG on it. was'not in a position to disagree with it. We too are of the view that it properly interprets the reguirements of Article 4.3 and we intend to follow it. While.we accept this interpretation of Article 413, it is important to emphasize that in meeting the obligations under that article the employer must employ a process of decision-making designed to consider the relative qualifications and ability of the candidate ina competition which will ensure that sufficient relevant information is adduced before the decision-makers in order that they may make their comparisons in the confidence that they are able to thoroughly and properly compare the qualifications and abilities of the competing applicants. Similarly. before this Board is able to review any result of a job competition, it must also be provided with th~s requisite background information collected in a. systematic and comprehensive manner so as to provide the Board with a sufficient factual basis on which to make the comparison demanded by Article 4.3. ~ After a consideration of ail the evidence which was adduced at the hearing, we have concluded that the selection committee was not sufficiently welt informed at the time it made its decision so as to be able to make a fair comparison of the relative and relevant qualifications and abilities of the grievor and Mr. Cocking. In the result, we have concluded that the selection committee's decision cannot stand. 'However. we have also. concluded that this Board was also not provided, with sufficient factual inf©rmation in order to all©v~ us to reach the decision required by Article 4.~ and to thei'eby substi~ut,e 'our l_l._~=L.l.l!r i-1-,~ ~;~]ec'tlon cr~r~ie~'~ '~e a~ r.,r,:. F-:.~y:e,~ ~-,,, h,~.'e forced tis ~,l, COFLCfqde that .the comx~ittee's dec'siC, EL c,~r~nc, t stand. Theref,:,r=, would be unwise and fmproper ~c,r us, judgment on ~nformation which-we h~ve cencluded w,fs ~nsuff~c~ent for the selection cor~Jttee make its judgment, In the case before us. w'hile we also find that the selection com~ittee was not sufficiently well informed so as to be able to.make a fair comparison of the relative and relevant ~]ualJfications and abi'lity of the applicants, we do not fee! similarly constrained as was the Board in the Quinn case. because we do have adequate evidence before us tO reach a decision required by article 4.3. Counsel. for the Employer also referred to the ot,~.teraeht. of the Board ~n the QuJnn case. at pp. 9-11: There were a number of defects in the D~OC~'~'S by which the selection comn]ittee made its decision jr, the job competition, and it is these defects which we wish to identify in order te assist the pal"t~es in designing and evaluat~a~ competitions in the future. As was stated in Remark. it is well accepted that "in considering qual abilities of all applicants, the employer must nc;t act arbitrarily, discriminatety {sic] or in bad faith. Nor shc, u~d hea~'~._~ unreasc,~lab!~ _ y. ei't establishing requisite ,ln.~aiifications f,l,F the job nc, r ~n epp!y~n~3 them to, the app'licants" ~n ,-.~t~.~' ho fulfil these ,:,bligati,-,ns. the cc, r:~Detit~o~s that is c,:,nsist,Pnt with the ?~u.-p,:,s..'.~' col lecture a~/~eement, t. he ~r,:,c¢~ss ink, st be t'c. elicit in a S'.,st~-m,r~t~c manner comprehensive information about each applicant relevant to the qualifications and ability required to perform the 'job in order that a fair and reasonable assessment of the relative strengths of the candidates can be undertaken the final selection made. The process used in this case failed to meet the test. Ironically, the process used by the' Ministry appears to be an attempt to respond to previous expressed arbitral concerns about the fairness of selection processes. '7'he Ministry used an identical set of questions for each interview, used a common score sheet for evaluating the candidates in the interviews and each interviewer scored each candidate independently. Thus, the process was given the appearance of fairness and adequacy. However, despite these positive aspects, sufficient defects remained in the process that its result cannot stand. A difficulty facing the Ministr7 in making a fair selection decision in this case was the apparent · 'absence at the time of the decision of any systematic employee evaluation programme. While we understand from counsel's comments that steps have since been taken to implement a regular system of employee work performance appraisal, the absence of such a system predating the selection process substantially increased the need to be absolutely certain that the evaluation of the candidates in the process was as complete as possible. Where regular assessments are made and recorded, the results of these assessments can constitute an important and reliable source of information for the decision-makers on the relative skills and ability of the candidates. In such circumstances, a somewhat less comprehensive evaluation of the candidates during the actual selection process may be acceptable as this prior body of information could'be relied upon in part. However, in the absence of such prior information. the selection process itself must be relied upon as the exclusive source of information and it must consequently be more thorough. There is nothing in the ~2_uinn case that conflicts with our view of the responsibilities of a seiect~on co~nittee unde~ 29 article 4.3. The Board concluded (at p. In the resuit, the selection process used by the Ministry as part of its obligatio~ under Article 4,.3 to evaluate the relative qualifications and ability of the applicants was inadequate in that it failed to elicit in a systematic fashion sufficient ~nformation to permit a fair and reliable jud~unent about the candidates. Ali that the Board'was required to do (at pp,6-7) was to consider: "whether or 'not the requirements of Article 4.3 of the collective agreement had been breached in the conduct of this competition, The parties requested that if the Board were to conclude that the requirements of Article 4.3 had not' been met' then the Board should direct'the part~es-to do their best to settle this matter ina manner acceptable to the grievor, Ministry and the [incumbent]." Counsel for the Employer also referred to Bent, 1733'/86 (F~sher). At pp. 11-12 of the Bent case, t.he Board referred'to Sedore, 250/83 (Deiisle), where the following quotation was found: In Marek 414/83 (Samuels) this Board ordered a new selection because they were persuaded by the grievor that he could very likely demonstrate relative equality if a proper selection procedure were undertaken. against that background that we now turn to examine the selection process under atta'ck. Kt page six of the decision, the foltowxn~ quotation is found, The grievor has failed to persuade us that he was ~e!ative.ly equal to the successful' applicant or that he [night be able to persuade a new panel of the same. The Board in Bent went on to say, at p. 12: From this it seems clear that the onus is on the Union 'to 'establish not only t'hat the defects existed but that had the defects not occurred. that the grievor would have got the position. Although it is not articulated in-the Detisle decision, it seems appropriate tha% the onus should simply be on the balance of probabilities. In other words, if the Union is able to show that there were procedural defects in the selection process then they'must show on the balance of probabilities that had those defects not occurred the grievor would be found to be relatively equal. If we apply that test to this case, the Board is not satisfied on a balance of probabilities that the grievor is relatively equal even if the defects were cleaned up.. Although the defects found by the Board are somewhat numerous and not insignificant, one must not lose sight of the fact thatlin general the Board found that the questions were appropriate and that the defects would have had a significant difference in. the scoring. The facts in the case before us are different,~ The defect here is that except for giving an automatic number of marks (10) for' having occupied the Correction Officer 2 positiOl], the Employer did not, in.any meaningful sense, consider'the actual evidence of performance in the posted position by the claimants. In the Bent case, the Board was satisfied, having heard the grievor's response to questions:, that he did not grasp 9[ the essential elements of the job. (At p. 12.) In the case before us, the evidence makes it abundantly clear'that the Mr. Hall can not only perform the duties of the very job posted, he has performed them, and has done so extremely well. He has also been evaluated b~ his supervisors while on the job. Accordingly. the Bent case cannot assist the Employer. It is also important to note that in the Bent case the job held by the Grievor at the time of the competition had "l'ittle, if anything, to do with the job for which he was applying." (at p. 4.) Counsel for the Employer submitted that the selection committee had not relied exclusively on the' oral and written tests but had taken account of the experience factor. We would note that although the experience factor was coDsidered by the' selection committee, i,t was done so ~n an entirely inappropriate fashion. The ten marks given to all applicants who had achieved C.O.2 status did not amount to a proper consideration of the relevant evidence relating to the applicants' qualifications and ability. As noted above, the Board does not expect perfection from an employer. However, {he employer must show that jt bas g~ven proper consideration to such a relevant factor as the actual performance on, the job posted. Given the availability of reviews of the.applicants' performance on the job posted, and given .the means of obtaining further input frown supervisors who 32 have seen the applicants perform the job. to rely almost exclusively on a test does not represent necessary compliance b~ the Employer of its obligations under article 4.(33. Counsel for the Employer also relied on Rita Strazds. 88/83 (E.B. Jolliffe). In that case the majority of the Board found at p~ 18: ~ Of course it is possible to find fault with the conduct of almost any competition. Like most. there were defects in this competition but we do not thi~k they were sufficiently Serious to justify rejecting it. In particular, we th~nk it regrettable that the committee made no effort to examine performance appraisals. The practice of ignoring such appraisals has been expressly deplored by this Board -- and also by a Manager of Staffing (in 'another Ministry) who testified iii Ellswo~th 26.1/80. It is regrettable that the selection committee in this case as in many others thought itself fully competent to reach a conclusion almost exclusively on the basis of interviews with the candidates. NevertheIess. we think the committee made 'a sincere and rational- effort to assess relative merits, and we do not think the procedure used was so defective as to negative the whole process. . In the Strazds case, the grievor was seeking what amounted to a lateral transfer, however, she had not performed the exact job being posted (see p. 3 Strazds case),, in addition, the incumbent had never actually filled the position advertised. (Strazds case at p. It is evident that the majority of the Board in 33 · Straz~s. in dismissing the grievance, made th$ir own assessment Of the two candidates on evidence placed before them 'du~Jng .the course of the hearing, which ~ncluded a consideration of the'woz*k formerly performed by the grievor (at pp. 18-19). The majority of the Board were evidently moved by certain differences in personality and ab~llty to communicate which they noted and which the person~ doing the ~cqring also noted. This was found to have, g~ven a "definite advantage" to the incumbent (at p, 26), Thus, in the Strazds case, the majority of the Board were influenced by their own assessment of the grievor and the incumbent, which happened to also have moved the ~anel that assessed their ~ualifications and abilities.. In the case before us, our assessment of the evidence relating to the actual job performance does not accord with the'test findings which are not based on actual job performance. In the circumstances, we have concluded that it would be unreasonable to i~nore the c~ear indication given.by the evidence of'actual performance on the' job. Counsel for the Employer also referred to Mubarka Alam. 140/84 (R.J. Roberts), where, in referring t° a re-run comQet~t~on, the Board stated, at p. 1: If ever there was a need for vigilance in ensuring fairness, it Ss in a re-run competition. Fairness is the essei~ce of the exercise. A re-run serves .one main purpose: to correct fl'aws Which might have affected the fairness of the original proceeding. It can be the last chance for fairness. A re-run seldom, if ever, is re-~'un. The need for finality intervenes to dictate a binding solution. It is for this reason that scrupulous attention must be paid to fairness the planning 'and' execution of a t'e-run competition. We do not find fault with the good faith of the. Employer in planning and executing the re-run competition. In the circumstances, however, we could not find that the procedure and substance of the job competition provided a fair and reasonable assessment'of the relative strengths of the candidates. : Counsel for the Employer also relied on Desi/Bousqu?t, / 226/89, 227/89 (Slone). At page 9 of the Desi/Bous~uet case, the Board referred to Poole', 2508/87 (Samuels) at pp. 2-4, which case was relied upon by the Union in this case: At 'th~ interviews, a series of questions were asked of each candidate to elicit information .concerning the candidates qualifications and experience. And then the candidates were scored on these answers, without any re~ard to th~ information on the application forms, or information which might have been found in personnel files, or information from the applicants' supervisors at the Hospital. Apparently it is Ministry policy to base its decision entirely on the scores at the interview. If this is the Ministry's policy, then it is absolutely incomprehensible to us why it sh,3~lld be so. This Job competition had to be done accordil~g to [article 4.9 of] the collective agreement.- .... And this Board has explained in detail many times what is required to fulfil the requirements o~ Article 4.3 .... There must be a full gathering of information concerning the qualifications and ability of the appl'icants. It is not satisfactory to consciously ignore information as was done here, For some reason, the grievor did not do well at the interview ... and the three members of the panel were left with the impression that the successful applicant had better qualifications and experience than the grievor. But a look at their application forms would have confirmed that the grievor was a senior nurse with much experience in the very matter which was to be taught to the 800 staff members at the Hospital, while the successful candidate bad just graduated from nursing school. and had no experience in this area. In our view. the decision of the panel.was simply perverse and this resulted from its profoundly flawed procedure~(Emphasis in the original.) At page l0 of the Desi/BousGuet case, th~ Board,,in referring to the Poole case, stated: The Poole case depends on a very unusual set of facts, where the selection committee figuratively blinded itself to the paper qualifications and experience of the applffcants. That is not the case here. 'While the committee, in this case. did not completely ignore the experience of the applicants, the extent to which they did blinded them to the real facts: those' relating to the actual work performance and assessment of the applicants on the very job that .was being Qosted. The importance of e×~erience in the posted position was noted by the Board in the Desi/Bous,~_~, case, 36 at p. 10. wher~ it stated:. Indeed. it is fair to say that Ms. Perusini s paper qualifications are at least marginally superior to those of the qrievors,~ if only'as a result of her having acted for a period of 14 months in the very position being competed for. (We are mindful that this is a sore point, and is the basis of another distinct area of complaint.) Accordingly, even had the committee assigned marks for paper quali'fiCations and experience, this would not have helped the grievors: they only stood to break even at best or lose slightly from such an exercise. Unlike the selection committee in the Desi/BousQuet case, which was found to have: "had their eyes ~hd ears open throughout the process" (p. 11), the committee in this case were. much closer to committing the error which affected the Board in the Poole case: a figurative blinding tn failing to adequately consider the paper qualifications and actual experience.of the applicants, especially as it related to the very job that was posted. Counsel for the ~ployer also relied on D. Nixon, 2418/87 (Fisher)'for the~purpose of addressing.the subject of relative equality upon evaluating test scores. We would note that in the latter case. the Board s.tated, at. PP. 3-5: However, the case does not end here because the selection committee failed to properly consider an extremely important aspect of this cas'e, namely, the performance of the grievor during a secondment, The incumbent, prior to obtaining this position worked in another Ministry in a clerical job but obv~ously one quite different to the position that she ultimately obtained. The grievor, on the other hand, although he had a varied career in different jobs within the Ministry had per. formed the actual job in question on a six month secondment shortly before the competition. Furthermore, a supervisor of the ~r~evor, Mr. Nitch. produced a report for h~s supervisor, Mr. Houle, dated 1987/06/02 setting out an assessment of Mr. Nixon's performance while on the secondment for the job in question. The assessment sets forth in detail the various and numerous tasks that were performed by Mr. Nixon during his-secondment and although they do not .encompass each and every aspect of the job, they certainly indicate that he performed a large number of the aspects o~ the Field Office Dual Clerk. in addition, the last'paragraph of the memorandum contains this very favourable comment. "I found Mr. N~xon to be punctual, reliable and able to handle his work in a competent manner and would call on his services without hesitation if the need arose" Surprisinqly eno.ugh, the se[ectYon committee totally and utterly ignored this letter in assessing Mr. Nixon. In fact, the only consideration given b~ the.selection committee to the fact that Mr. Nixon had performed the job in question for six months and that it qualified him to get an interview, but other than the fact that it may ha~e assisted him in answering the interview questions, they'Gave no consideration to it whatsoever. Again, notwithstanding the numerous decisions of this Board telling a selection committee that part of the selection process is to interview the parties' supervisors, the selection committee chose only to conduct a reference check on the incumbent and only after they had scored the interview. They specifica!!y only contacted her supervis©r-in an effort to verify their finding that. she Qas the superior candidate, Hav~ng reviewed the reference check on the incumbent, the best that can be said is that it is no better tha~ the grievor~s assessment. This Board [lnds that: the failure, of the selection committee to consider the assessment of Mr. Nixon in his secondment to be a serious matter and had' they done so, like the Board has now been able to do, they would undoubtedly have realized that the difference in qualifications between the candidates was much less than would appear to be from a mere comparison of the mathematical~ difference between the interview scores. When one looks at the entire picture, being the interview scores and the assessment of the grievor~s performance on secondment, ~t is clear to th~s Board that Mr. Nixon was at least relatively equal w~th respect to qual'jfJcat~ons and abilities to perform the job in question and since he had higher seniority than the incumbent, he should have been appointed to the position of Field Office Dual Clerk at the Time of the ori~inai competition. (Emphasis in the original.) In the case before us, if the selection committee had completely considered the evidence relating to the performance of the applicants in the posted position and also within the maximum security facility, they would have realized that their test was, for the most part, an attempt to evaluate potential, whereas, the 'available evidence relating to actual work performance dealt wi~b present ability. In the circumstances, to permit the results of the te~t to govern would distort reality. What may in one context appear to be fair. may, i~ another, be unfair. Counsel for the Employer also relied on R,E. Barber. 1~97/85 (Kirkwo0d) at pp, 13-14: ' The supervisor has had the opportunity to watch 39 the candidate and is in an excellent position to co~ent on, the applicant's skills and abilities. The supervisor may not be ~b!e to coi~ent on all the candidates, nor on their qualifications in a relative sense,· He may also not have the perspective to view all the candidates and assess the job specifications and the qualifications, but his assessment Ss an important factor which should be taken into account. Therefore, while we agree that if the supervisors reports were inconsistent and very subjective that they could have little or no weight without prejudicing a candidate, that weakness could have been ameliorated, or put into perspective, by speaking to the respective supervisors. Therefore. it was incumbent for the employer, to contact the relevant people for any information that may be lacking. As the supervisors' reports were not used nor were they'contacted, there was a serious flaw in the process: however, on the facts before us, the flaw was not one which vitiates the competition. The evidence does not lead the board to find that the ou'tcome of the competition would have been different had the flaw been corrected. On the facts of this case, failing to give adequate weight to the clear evidence of actual performance on the job as evaluated by the candidates' supervisors, and neglecting to obtain their further input, represents a serious flaw in the selection process. Where a test clearIy fails to fairly assess the qualifications and ability of a candidate, as it 'obviously did in the case of Fir. Hall, to ignore this fact and persist in utilizing the test as the major basis for filling the'vacancy is unreasonable. It is not as if the Employer did not have a perfectly adequate method of making the assessment in the.absen~:e c.f the test. ,40. In the B_ia~rbe__fr case, the Board noted, at p. i6. that there were certain difficulties associated with relying on the annual appraisals for certain periods. The~e ere no such diffich~ties that affect resoPt to the appraisals ie the case be fore us. We agree with'the statement of the ChairPerson of the Board in Lethbridge, 603/80 (Barton) at p. 6-7: ... it was not my function to second guess'the Selection Board. ! did indicate ....that if i felt improper criteria had been used or inadequate evidence.presented to the Selection Board. it might be grounds to interfering. Mr. Whibbs, among his well argued submissions, argued that we' could still'view the selection committee as having concluded~ on the basis of its actions, that the applicants had. initially, demonstrated relative equality in their qutifications and ability based on their actual job performance and that the interview and essay tests represented an acceptable means of further evaluation which furnished proper assistance in finally decided {he matter. What he actually said was that the Empl. oyer acknowledged that the applicants could all, at least adequately, perform the posted job. If we accepted Mr. Wh~bbs~ argument, then it wou~,J be possible to circumvent the req~rement o~ acting on ail reasonably available fei~ ,= , ...... . ~v_nt evidenc~ In this case ~' would mean that Mr. Hall would be assessed on a'test the results of which were belied by the ,actual. evidence of his performance o~-~ the job. We wish to emphasize that we are not deprecating the role of tests in proper cases, nor are we elevating actual experience in the posted position to a new status. However. on the facts of th'is case. we~are satisfied tha~ the applicants were relatively equal in terms of their qualifications and ability to perform the required duties of the posted position. Where a test score is so out of line with the objective evidence of actual performance on the job, it can have very little weight. We realize that a test is only intended to assess relative qualifications and ability, but where it pPoduces a result, as it has in this case. that so distorts reality., we cannot permit it. - to govern as we were requested to 'do. Accordingly. in allowing the grievance, an order will go appointing Mr. Hall to the position of Annex Corectional Officer effective the date upon which ~he incumbent actually started the position. As this amounts to what is a lateral transfer, there need be no order with respect to wages, benefits or interest. Mr.-Hall's seniority in this position shai[ be deemed to commence from the date in which the vacancy was originally filled. The Board retains jurisdiction if ti%e parties 42 have any problem in implementing this award. In so ordering, we recognize that this is not an appropriate case to order a re-run of the re-run. We are possessed of sufficient evidence relating to the factors to be considered under article 4.3 to be able to make the award. Dated at Toronto this 7ih day of December... 1990. COMP£TITION MCC-2/88 APPENDIX "A' A P P L[CA TIO N5 A R E IN VITE D FOR THE POSITION OF: ANNEX CORRECTIONAL OFFICER " (CORRECTIONAL OFFICER 2) : ' SALARY: SUCCESSFUL CANDIDATE WILL MAINTAIN EXISTING SALARY LOCATION MILLBROOK CORRECTIONAL CENTRE The successful candidate wilI'su~ervise up to 12 inmates, within the minimum security Ann.ex, Millbrook C.C. Will supervise small groups of inmates performing maintenance of institutional grounds, local volunteer work projects within the community and surrounding area; will ensure inmates adhere to Annex procedures, recommending inmate discipline when required. SELECTION CRITERIA - demonstrated ability to effectively supervise inmates; preferably within minimum, security setting, ensuring proper care, supervision, and control; - good interpersonal skills; ability to deal tactfully and courteously with people f willingness to work outs/de/n inclement weather conditions; - good communication skills, both oral and written: - good physical health, ability t~ perform the full range of correctional officer duties; NOTE: Candidates' may be short listed, based upon the determined criteria, e.g. work reconl and attendance.. QUALIFIED individuals should submit their application/resume, in writing, to the Superintendent, not ~ater than May 25, i988. POSTING DATE: May 11/88 CLOSING DA TE: May 25/88 ' This competition is restricted to individuals currently classified at the Correctional Officer 2 level, Millbrook C.C. EQUALITY OF OPPORTUNITY FOR EMPLOYMENT :DD 1'~ '"~"" Annex Officer 19-'/~52~~' [ I ~c~.H~..W~k RPT Po~n.~l~) C~h.,~w~.~(~.~,~ C~.(~I --~FoiIt~ ~:qll I POS~LIon C~e C~a~I title &nd c~e Cerrect[ona l Services Fn ~t.~rn R~gL~n , J~'~ Operations ~II lhrrmk Corrpct. J~)~~ J N~,OF pOllilonl I .,. of / ~0 perJorm ~eneta[ g~tles retatlllg to [h~ cake, c~stod), control 8nd supervision of J)ml~tes jn the minimum security a~n~x an an 8ssJgned shi~t; Lo provide correctional parties oJl and off [nstitgtion81 grounds including the operation of Faro.machinery: Lo p~rForm other related duties as required. ~Petfoms general duties relating to them care, custody, control and supervision or inmaLes at -'~imum security annex b~ ~rking elone et various. Joc~tJons o~ ai)d off of institutional property; taking over from out- going annex officer, receiving JAsttuctJons (oral or wrJtLen, depending on nature of tJonj eg. escape risk, inmate illness, [~)mate attitude; taking responsibility for keys, signing out, maintaining control of keys; verifying correct coui~L, ~Jgn[ng changeover sheer; taking counLs; keeping a Jog to record state of events at beginning of shift and shift 8ct[vities: observing for irregularities 8~feCting Security, good o~der, etc. such as breaking, of rules and security, suspicious conduct, escape 8[[~pts, hazards, dectding on appropriate acCion Lo be teken ba~ed upon ruJe~ and regulations, precedent, nature of incident eg. c(i[ ~or assistance Jn restraining [pinata(s), refer to ~nex )))~ager; provide oral and written reqgJred, regarding incidents, own or o[lJers actions, conduct,industry or behaviour of residents etc.; ex~rcJse personal judgemei~[ to warn or counsel inmates J~'~Jnor reporting major misconduct to Annex ~anager; fi JJJ~g inmate ~equests for regular jail 'sLmppl eg. toothpaste, soap, etc.; forwarding inmate requests for JnLeKview and medical 8LL~nLJon to institutiun duty office o~ Annex Manager~ depending on nature of request; searching area for contraband; supervising, assigning and instructing ~nmates in work duties, ensuring custody and welfare J~ work s~ch as gardening, lawn cutting, unloading of Stores: and supervising inmates perfoming volunteer ~rk in local co--un[Lies such as snow shgvel ling~ raking leaves and a~sistJng ~on-pro~Jt volun[ory agericJes; supervising inmates ~n the planting cultivating, car~ ~nd harvesting of fruits and vegetables of the self-sufficiency programme; gf[[Jz[~g andJtnstructJng inmates in the use of maCJlJ~y ~nd tools related to the annex 'atJOliS; t~SpO~t inmate work pat~ies Jn i~stitutiana] vehJ~Je to work locotJons gu/off grOUndS as requJ~ed; ensuring retur~ of (JJ prisoners from wurk ~Ca[Js jn cas~ of es~al)e ~[e~cm~ t.n ~n~x ~ ~nd [n~tJ~o~(~ mir (OVER - ' 4, ~kil[I lnd kn~ll~ff Jlq~ t~ ~llJJlm jo~ Il lull *raking lm~ml, (IndJ(mli ~[~ ~tnllmlJ at ii,mm, II Demonstrated ability to ~ffectJ~ely supervise Inmates, Aorm8JJy )c~uJt~ through achievement Correctional Officer ~ J~Y~J, ensuring proper care, supervision and control Ill 8~ open se[tjrlg. good JnteFperso~8) skills; good co~unJcat[o~ skills, bo[ii oral ~nd written; abilit~ tactfully and c~utt~m)~)) vith P~e~i~~~, (OVE~ . R, Walker G. 8. Preston, Su~erJnLendent 1 Correctional Officer J50563 CO-Or r m ~- Controls, dimreCts and supervises inmates' en~bring welfare, safety, security and discipline; supervises a variety of uo6k duties and escorts inmates as required. m. Engages in other general correctional.dut[e~'Jnc~ud'i~g clerical work and other duties . .ssJgned .. Inelruc(tonB for ~ompletlng form CSC.6150 F~I I ~ ~ OI;. M~. June Sap. ~ ~ Any ch~ ~ 114 S~edulld H~t or Work w~ r~e ~ l~a~i ~4 ~e~ of a 5~male NOTE: M~flple ~ musl ~ ~SOCb~Ni [o'quati~ aa o~ ~slt~, SK~LLS M~ KH~L~DGE (Continued) mgnintenace and safety of farm tractors and equtp~nt necessary Lot :he plant~ng and harvesting of crops, grass cuLCing and sno~ r~ova], normally acquired :~rough previous experience ~orkJng ~L th fa~ or industrial machtnery/equipme[at. OUT[ES Kilo RELATEO TASKS (continued) I0~ Performs related duties bg: Flaintalning and/or supervising the maintenance of annex m~ctlinery; performing general supervision of Individual or groups of tnmaLes performing general upkeep of Annex buildings; performing m?nor repairs to annex equipment or buildings as required; performing full correctionat officer duties in ~lllbrook Correctional Centre,as assigned. .Lr' WRITTEN EXERCISE * (RERUN) ANNEX OFFICER MILLBROOK CORRECTIONAL CENTRE Time Allo~ed - 45 minutes to ~ hour. 2. Responses will be assessed Considering content, style, structure, grammar. 3. Question sheet to be returned with response. 4. Be sure to include your name on your work. I/ Outline the benefits of operatin~ a minimum security annex prograame at Millbrook C. C. as if the superintendent has told you that you will be responsible for explaini~ the purpose and rationale for the .existence of 'this programme' to the public inspection panel which will be visitin~ the institution in the near future. II/ Describe the difference in the role of' a Correctional Officer .employed at the annex (if ~ny) as compared to the role of a Correctional Officer employed in the institution proper. Compare in full. APPENDIX EXPERIENCE'* (RERUN) ANNEX OFFICER CORRECTIONAL OFFR 2 MILLBROOK CORRECTIONAL CENTRE 15 - Employment-experience as a correctional-Officer - Occupied a position where responsible for operation, on~oir~ ,maintenance,~ troubleshootin~ of a variety of equipment related to farming operations or the landscapir~/gardening industry 11 - Employment experience as a Correctional Officer - Occupied a position where responsible for operati~ and maintainin~ machinery, troubleshooting problems and carryin~ out minor repairs 8 - Employment experience as a Correctional Officer * NOTE: P.P.R, must be positive to receive ful~ marks