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HomeMy WebLinkAbout1992-2168.Esposito.95-09-29 i I \ .~Y) -. . _ ;. 3, ONTARIO EMPLOYES DE LA COURONNE ~ CROWN EMPLOYEES DE L'ONTARIO :<<V'1\- " 1111 GRIEVANCE COMMISSION DE . ~:(II tJ~~ 0P ') ~4-. SETTLEMENT (REGlEMENT tJ cl ~ t:\1fvti. ", 3 f(y BOARD DES GRIEFS t- ~ or<' p..~- ~ D~ corti 180 DUNDAS STREET WEST. SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RYE<DJlf)/DAS.@UEST,"'BUREAU ?100, TORONTO (ON) M5G 1Z8-, FACSIMILE/TELECOPIE (416) 326-1396 F REceiVED \ GSB #.. 2168/92 . S E P 2 9 1995 OPSEU # 92D573 l PUBUC SERV\CE APPEAL BOARDS - IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Esposito) Grievor - and - The Crown in Right of ontario (Ministry of Housing) Employer BEFORE: W Kaplan Vice-Chairperson I Thomson Member " ~ F Collict Member .- \ "- FOR THE A Lokan / GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE D Jarvis EMPLOYER Counsel Filion, Wakely & Thorup Barristers & Solicitors HEARING September 30, \1993 April 14, 1994 May 12, 1995 June 6, 1995 ~ July 28, 1995 J 71-:. ( 2 ft:.. Introduction This case concerns Lucy Esposito's June 3, 1992 grievance alleging a violation of Article 4 3 Of the Collective Agreement on the basis that she was improperly denied a Client Service Representative position (hereafter "the CSR position"), and further taking the position that she had been ( discriminated against contrary to Article A. The case proceeded to a \ hearing in Toronto in September 1993 Unfortunately, a number of early continuation dates had to be cancelled due to the "hospitalization of one of the panel members While the union initially claimed discrimination on the basis ofa rlledical disability known as thalassemia, and on the basis of pregnancy, no evidence was led in support of this claim. Therefore, the only issue before the Board was the result of a May 1992 job competition. The incumbents were notified of this grievance, and appeared on the first day Of hearing They did not, however, participate at that time, nor did they reappear on any of the continuation dates. As the grievor subsequently obtained the position in _question, the only outstanding matter, should the grievance prove successful, was compensation - It should be noted at the outset that the Board directed, notwithstanding the employer's objection, disclosure of the results of another competition for an identical position to the one at issue in this case In brief, the grievor, in S~ptember 1991, comp~ted unsuccessfully for a CSR position While she did not end up getting the job, she was found during the selection process to be qualified for it. After losing that competition, the grievor grieved, and that grievance was settled on the basis that a rerun would be held The grievor again proved unsuccessful in that competition, and another grievance was filed It is scheduled to proceed before another "- i' ( ti' Y 3 I ( ~ panel of the Board In the meantime, however, the union argued, among other things, that the results of the earlier competition were arguably relevant to this proceeding given that the grievor was foun8, in that earlier competition, to be qualified for the position in q~estion In the union's ~iew, since the grievor was found qualified once, it was hard to understand how she would be found unqualified a short time later As just noted, the Board ordered the disclosure of the materials, and allowed in limited evidence with respect to this earlier competition Having now had the opportunity to consider the case in its entirety, the Board is of the view, which is further developed in our actual reasons for decision, that the only , legally relevant results are those of the competition presently before us as each competition is unique A finding in one speaks simply to that event, and not to future events. Obviously, if the grievor had been found unqualified in the earlier competition, evidence to that effect would be of limited relevance where the propriety of a subsequent co.mpetition was \ brought into issue " With respect to the merits of the matter before us, ,it was the union's / position that the grievor was, at ..'-the very least, relatively equal to the three successful applicants and because of hen' greater seniority - she began work for the employer in September 1 988 - should have obtained one of the posted positions In the alternative, the union took the position that the competition was flawed, and should be rerun in such a manner so as to f properly assess the qualifications and abilities of the applicants It was "^ the employer's position that while the grievor did have greater seniority than the successful applicants, she was not relatively equal in skills, abilities and qualifications. Accordingly, Article 4 3 did not come into play The employer was also of the view that while the competition may not been I " 4 \ " ~ perfect, it was not fatally flawed, and the Board should not, therefore, interfere with the results Before turnmg to the evidence of the parties, it is useful to set out some of the agreed-upon backgroul}d facts The purpose of the CSR position is to accept and process applications for placement in housing units owned and -- managed by the employer, and in that way ensure that the units are kept filled and rental revenue loss is kept to a minimum. The job requires significant case management skills The employer is responsible for 33,000 units, and more that 110,000 residents. There are 20,000 prospective clients on the waiting list, The GSR must interview clients and prospective ~ clients in order to assess their eligibility and suitability for housing A great deal of judgment must be exercised Significant organizational, interpersonal and communication skills, both written and' verbal, are required as the caseload is large and numerous forms must be completed Some clients require assistance with the paperwork Other clients are "highly volatile" Incumbents must be familiar with social service agencies and other housing providers They work under a great deal of pressure, and need to be both conscientious and attentive to detail The Union's Case The Grievor's Evidence The grievor was one of hundreds of applicants for the CSR position Following prescreening, a relatively small number of candidates were selected -for an interview, including the grievor At the time of this competition she was a Client Services Assistant (hereafter "the CSA position"), and had held that job since October 1991 Prior to that, she held i the positions of Project Clerk, Applicant Clerk and Support Clerk. The I '- \ \i .- S Support Clerk position was, following reorganization, converted into the CSA position CSAs provide clerical and administrative support to CSRs, Special Needs J ';' Officers and Special Projects Officers. Just prior to this competition, the grievor worked for the Special Needs Officer who was responsible for abused women, the psychiatrically ill and the disabled The grievor described her duties and responsibilities which included receiving new applications, responding to telephone calls and dealing with a great many different queries which she answered or referred as appropriate While -- some callers merely required information about the application process, other callers were in crisis, and needed immediate assistance In those instances, it was ~p to the grievor to direct the caller to the appropriate person or agency Considerable judgment and good communication skills were required in this task, and these skills were also necessary, the grievor testified, when she was attending at the front desk. In that capacity, she dealt with a large and varied clientele, providing both general - and specific information and assistance She also made appointments, performed initial reviews of applications to ensure that appropriate I documents were attached, and if not, took steps to obtain them, and provided other administrative support. In the grievor's view, having observed CSRs in action, albeit after the filing of her grievance, she was, in her CSA position, doing much the same job as the CSRs. Moreover, the grievor testified that in various of her other positions, sh~ had performed different aspects of the CSR job, and noted, in / addition, that prior to the competition, she volunteered to conduct intake interviews. This experience further prepared her for the CSR position In --' 6 { ~ "fl 1".8 reviewing the position specification for the CSR job, thegrievor identified a number of specific duties and responsibilities that she had previously performed, and testified that in the performance of these functions, not to mentioni~ doing her regular job, she was required to use the same sort of knowledge, skills and abilities required of the CSRs The grievor was initially scheduled for an interview on Wednesday, May 6, 1992, but cancelled that appointment because she was not feeling well As it turned out, the grievor, who "felt that she was sick with the flu, might have been pregnant at the time The interview was rescheduled for Friday~ May 8, 1992, the last day of interviews for the competition The grievor - was still not feeling well that day, and was also concerned to learn that Mr Dennis McBride, the Manager, Client Services was on the panel According to the grievor, she does not get along well with Mr McBride, and had, on I January 15, 1992, filed a grievance "against him" taking issue with the manner in which he responded when she arrived late to work one day because of a snow storm. Mr McBride had responded by writing the grievor a letter noting two late arrivals at work, and stressing the importance of employees arriving at work on time The letter further informs the grievor that future lates would lead to the imposition of- progressive discipline The grievor also had some other reasons for Concern about the presence of ~ Mr McBride on the competition panel She had filed a grievance over the results of the September 1991 CSR job competitiQn As noted above, that grievance was settled on the basis that a rerun would be held The grievor learned that Mr McBride was to serve on the rerun panel She objected to i In all of these his participation, and Mr McBride was removed circumstances, the grievor had come to believe that Mr McBride was biased \ ~ r, i) 7 ~ ~ ,r.;.zi against her, and she Was disturbed, in May 1992, to learn that Mr McBride would bea member of the selection panel ~owever; she did not mention anything about these) co~cerns All she told the panel members was that she was still feeling under the weather The grievor did not ask for another adjournment becau$e she was aware that Friday was the last day set laside for interviews. While the grievor initially stated that she came into work specifically for this interview, the employer took the position that tpe grievor was present at work on the day in question. According to the grievor, she has very good communication skills, and she referred to a February 25, 1991 performance appraisal which rates these skills at either the "satisfactory" or "commendable" level, and which includes supervisor's comments such as "always polite and. considerate" and "gets along well with clients." However, when the grievor was cross"'-examined, it became clear that the employer did not think that the interview went very well, and various interview records were introduced into evidence documenting the employer's observations !o that effect. Moreover, the evidence also I establishes that the grievor did not always pay a ,great deal of attention to detail, and was not always concerned about accuracy, which she agreed was important for the CSR position For example, the grievor's application for the CSR position was introduced into evidence It was an undated form letter applying for a job with "your Company" It makes no reference whatsoever to the CSR position, or to any of the grievor's qualifications for it. The letter does not appear to have been proofread, and the grievor conceded that the grammatical structure could have been better In addition, the attached resume shows, as the grievor testified, that it was -J \ ! ( G i)' 8 -- prepared in haste, and was neither comprehensive, nor, in places, accurate One of the' letters the grievor wrote as part of the competition process was introduced into evidence, and it also shows problems' in punctuation and grammar The grievor agreed, after having examined the covering letters and resumes of the successful candidates, and comparing those documents \ with her own, that they demonstrated much bette,r or~anizational and written communication skills In addition, when the grievor's evidence in chief was probed during \ cross-examination, it became far from clear that she ever performed the duties and responsibilities of the CSR, at least to the extent described earlier in her evidence-in-chief Fairly construed, the grievor's previous I positions had a clerical focus. As well, even though the grievor took certain initiatives as a CSA, she was effectively managed by a Spedal Needs Officer, not a CSR. Indeed, the grievor had not, at that time, ever even ~ worked for a CSR who was., in any event, the person who made the important decisions about the"disposition of applications. While the grievor had - previous experience doing in-depth interviews, the ~vi-gence established that this experience was relatively limited ~ Given the evidence with respect to bias, the grievor was asked about her I relationship with Mr McBride She testified that she felt that he was harassing her in the manner in which he dealt with his concerns about her lateness In the grievor's view, she received differential, and negative, treatment from Mr McBride, and that is why she filed a grievance about him. That grievance was settled after the May 1992 job competition, and \ the settlement involved Mr McBride's letter remaining on the grievor's file for a period of one year (The other grievance, relating to the rerun of the ~ <i 9 0 September 1991 job competition remains, as noted above, outstanding) \. ------ Evidence of PatriCia Lee-Quai Ms Lee-Quai, a Special Projects Officer, union steward and vice-president of the local, testified on behalf of the grievor In her years with the employer, including a spell as a CSR, Ms. Lee-Quai has' worked with both CSA's and CSR's In her vi~w, there is a great deal of overlap between these two positions Indeed, Ms. Lee-Quai testified that the only significant \ difference in the jobs was in the exercise of final decision-'making powers However, Ms Lee-Quai agreed, when cross-examined, that she has not performed the CSR job, but performed the .predecessor position prior to reorganization Moreover, she has never performed the CSA job How then could she comment on these two positions? Ms Lee-Quai testified that she worked alongside the CSR's and CSA's and so was familiar with their duties and responsibilities, and she insisted, despite various differences in duties and responsibilities being pointed out to her, that there was more similarities between the jobs than differences She testified, for example, that the jobs were equally accountable and required the same degree of ) knowledge and same level of organizational skills When Ms Lee-Quai was referred to the questions asked as part of the competition process,she agreed that a CSR should be able to answer all of the questions Ms Lee-Quai also testified that she has observed the grievor's relationship with Mr McBride, a relationship which she described as "tense. " In Ms. Lee-Quai's view, the grievor was frequently singled out for disciplinary attention by Mr McBride, and she described an incident involving a filing ...., cabinet as a case in point. What bothered Ms. Lee-Quai the most about this incident was not that Mr McBride was questioning the grievor's use of the ~ -- ) I \ I 7 G "'1 10 \ 7 ?' \ filing cabinet for personal 'things - there was a storage shortage in the office. - but his tone, and the fact that he addressed his questions and concerns to the grievor in front of other employees. Ms. Lee-Quai was stationed immediately beside the grievor, and so was in a good position to observe events pertaining to her The Employer's Case Mr Dennis McBride, the District 6 Housing Manager, testified on behalf of , the employer Mr McBride described the CSR position, which reported indirectly to him through a supervisor According to him, the CSR was responsible for managing a heavy caseload composed of new applicants and residents applying for transfers Mr McBride reviewed the CSR position specification, highlighted some of the important responsibilities associated with the position, and did so by explaining the job and providing numerous examples illustrating his various points Suffice it to say, that Mr McBride's evidence convinced us that the CSR position is a highly responsible one requiring considerable knowledge, a high degree of organization, and excellent communication and interpersonal skills Each CSRhas a caseload of 7 SO to 800, he or she is in constant communication I with new applicants and residents, and he or she must keep and maintain detailed and comprehensive records. Turning to the competition at issue in this case, Mr McBride testified that there were almost 400 applicants for the job, of whom a handful were selected for an interview In arriving at its selection decision, the panel considered the application materials, and the test and interview results It also reviewed individual and corporate files" and conducted reference checks of the successful applicants. ~ccording to Mr McBride, it was not ~ ( ,,- 11 ? felt .necessary to initially conduct formal reference checks for all applicants as they were all internal, and were known to the panel members Only three of the applicants passed the test - a threshold score of 60% was established before the competition - and the other candidates, including the \ grievor, scored so far below the passing scores that Mr McBride determined I they were not relatively equal There was, therefore, in his view, no need to conduct reference checks, or to review the grievor's personnel file Mr McBride described how the test was prepared, and noted that two of the questions, numbers 7 & 12" required the candidates to prepare a written response. These questions, along with question number 13, were consensually scored The other answers were independently assessed Qy the panel members in a process that took place on the final day, Friday, May 8, 1992, after all the interviews had been conducted While draft answers to the questions were prepared, marks were also given for other answers which were relevant and responsive The interviews took place in a fairly compressed- time period, and so the scoring, Mr McBride testified, was not - conducted until the after the last interview had been completed While the grievor was one efa number of applicants selected for an Interview, Mr McBride testified that he had some concerns about her application He told the Board that her application letter, which was introduced into evidence, was not only undated, but was of a form nature. Moreover, it had both structural and grammatical problems, and this concerned Mr McBride given the high degree of both written and verbal communication skills required for the position. Having reviewed this letter, along with the grievor's accompahying resume, it is clear to the Bo~rd that insufficient care went into the preparation of these materials as i 12 ?" both were replete with mistakes of a type and number one, would not expect to find in a letter applying from an employee applying for a promotion. Mr McBride opined that the application materials did not indicate that the grievor possessed the attention to detail. necessary for the CSR position In contrast, the application materials of the successful applicants, which Mr McBnde also reviewed with the Board, were not only much more profes~ional in appearance, they were also grammatically correct and appropriately presented ( Needless to say, Mr McBride was aware, at the time of the competition, \ J that the grievor held the CSA position However, it was his opinion that there was very little overlap between the CSA ahd CSR jobs, and that the , former was almost entirely clerical in nature It was true enough that CSAs worked under the direction of a CSR or a special needs officer However, while the CSA and CSR would work on many of the same files, the type of work that they did was, in Mr McBride's view, readily distinguishable The CSA work did not, Mr, McBride testified, provide significant background experience for someone seeking the CSR job. According to Mr McBride, the grievor's experience in special needs was limited in duration and scope, and while it might provide some foundation for the CSR job, that foundation would be limited \ In addition, Mr McBride .., testified that while it was true that CSA's had" for a short period of time, conducted some interviews on an experimental basis, that ~xperience was extremely limited In contrast, the three successful applicants had directly relevant background and experience Two of them held the CSR job at the time of the competition, while the third held the same job as the grievor All three of the successful applicants, unlike the grievor, had obtained B.A degrees 13 f While considerable time at the hearing was spent in reviewing the \ questions, answers, and scores assigned to the grievor and to the successful applicants, it is not necessary to review this evidence in detail other than to note that it has been carefully considered Suffice it to say that the Board is satisfied that the interview and test part of the -' competition was, considered in the overall, properly run and that the scores assigned to the answers were reflective of the answers that were given Ultimately, the grievor received a score of 49 6 Not only had she failed to t pass the threshold of 60%, she came well below the scores of the three J \ highest scored candidates: 62 7, 65 9 and 67 1 Mr McBride was asked some questions about his relationship with the grievor, and testified that he had some concerns about her attendance record, particularly the fact that she was late for work on a number of occasions He brought those concerns to the grievor's attention. He also had some concerns about the grievor's attention to detail, and referred to difficulties relating to misplaced information and files, and problems reflecting a failure on the grievor's part to follow up. From time to time, Mr McBride became concerned about thegrievor's knowledge of policy and procedures, on one occasion, after overhearing her giving out inaccurate information on the telephone, Mr McBride spoke to the grievor and advised her of his concern He testified that the fact that the grievor had previously filed a grievance about about a January 15, 1992 letter that Mr McBride had sent to her warning her not to be late did not affect his evaluation of her application Indeed, Mr McBride pointed out that he and the other panel members went out of their way to be of assistance to the grievor, and went so far as to reschedule her interview when the grievor initially cancelled it on account of being sick. Before that interview' began, (' ( 14 .~ on ,Friday, May 8, 1992c, Mr McBride asked the grievor how she was feeling, I and it was only after she replied that she was feeling better did the interview commence Unfortunately, the grievor'S demeanour during the interview did not impress Mr McBride, and he testified that she alternately "slumped" and "fidgeted" Her answers were "scatter-gun" and repetitive All told, the grievor did not make a very good impression, and when this impression was combined with her interview and test results, followed by ! a comparison of the interview and test results of the three successful candidates, there was no way that he and the other panel members could conclude that relative equality had been established The grievor was not, 1 therefore, offered the position \ I Cross-Examination of Mr. McBride Union counsel began his cross-examination of Mr McBride by exploring how it could be that the grievor, who was once found qualified by a job competition panel for the CSR job could, in short period of time, be found - , unqualified by another panel for that some job. As already noted, and for the reasons that follow, we ,have concluded that it would be neither 'helpful nor appropriate to compare these two job competitions What matters in this case is how this particular competition was run In that regard, Mr McBride was questioned at some length about how toe 60% benchmark came to be set, and he testified that it was not arbitrary but reflected the panel's assessment of what was required in order to be considered a qualified candidate in this particular competition While Mr McBride could not .identify any particular skill that a candidate had to possess, and he noted in this regard that an applicant could fail to answer one question and still meet the benchmark, he insisted that the questions as .J ( 15 ~ a whole and the 60% benchmark were an appropriate way to go about determining who was qualified for the position Scoring, as already noted, took place on Friday May, 8, 1992, after all of the candidates had been interviewed In response to a number of questions from union counsel, it became clear that the scoring process was accelerated, to say the least, given that no scoring had been done prior to that point, and some of the answers were consensually graded The corporate files of the three successful applicants were examined Almost immediately after the scoring process was completed and the results tabulated, the panel's recommendations were communicated to management, and late that Friday afternoon, approved. On Monday May, May 11, 1992, Mr McBride conducted reference checks for the three successful applicants, and after carrying out , that task, the applicants were notified of the results. Mr McBride could not recall any discussion ;about the grievor in the later stages of the competition process as her final score put her out of the running He did not, for instance, refer to her performance appraisals, nor did he inform the other panel members of some of his personal experiences with her Indeed, j according to Mr .McBride, after the results were tabulated, the discussion focused entirely on the three highest scorers who had, as a result of theil' \ , scores, become the front runners. There was no discussion of the results of ~ prior competitions; during the tabulation process, however, the resumes of the applicants were again reviewed to. ensure that all relevant information was taken into account. This pr9cess, as Mr McBride's evidence makes \ clear, did not assist the grievor Mr McBride was asked a number of questions about the grievor's demeanour during the interview, and-about various comments he and other panel --- - -- - - - --_._-~ 16 /' Ii members recorded in their notes with respect to it. It was suggested to him that some of these observations were consistent with the grievor being , sick, and did not necessarily reflect on her communication and other skills. In -response, Mr McBride testified that he was not a doctor, and that the grievor advised him at the start of the interview that she was feeling better He agreed that the grievor was the last candidate interviewed It would have been difficult to provide her with another extension Turning to the questions themselves, Mr McBride was asked about a number of specific questions, about the answers given, and about the scores assigned. In that context, he was asked to compare the grievor's February 1991 performance appraisal, which described the grievor as "always polite and considerate works well with the team. and always pleasant exercises good judgment. gets along with clients" with some of the assessments made during the course of the interview process Suffice it to say that the evidence establishes with respect to several questions, that the grievor was not as generously graded' as she might have been, and that in a number of instances the grievor was not credited at all, even though in at least one instance, the germ of a correct answer is recorded in the I. .' -; interviewer: notes In a number of other cases, where the grievor gave correct answers, but where those answers were not part of the model answer, she did not receive credit for them. In partial ex~lanation of his grading, Mr McBride explained that many of thegrievor's answers were r I disjointed, and could not therefore be given credit. '-'-Buzz words" and I "partial phrases" failed, in Mr McBride's view to appropriately respond to the questions that were asked In many cases, Mr McBride explained, the grievor's answers were short and decontextualized ) ( i ;- 17 'e, Mr McBride was also asked a number of questions about his relationship with the grievor and; specifically, about a number of incidents that had occurred over the years. One of these incidents1 explored at some length, was never even discussed with the grievor, and little purpose would be served reviewing it here. The other incident has to do with the letter of counselling given to the grievor for lateness, and her grievance with respect to it. That grievance was settled by the parties agreeing to remove the letter from the gdevor's file after one year This grievance was, however, outstanding at the time of the job competition A further incident related to Mr McBride counselling the grievor for providing incorrect information Even though Mr McBride could only hear half the conversation, he could tell that what the grievor was saying on the telephone was wrong Accordingly, he advised her of this when her conversation was concluded. Another incident relating to the grievor's deportment while making a personal call It was not the personal call on a break that Mr McBride objected to, what bothered him was the way the grievor was behaving during the call, and the impression that this would make on visitors to the office The final incident related to the use of a filing cabinet. According to Mr McBride, he did not "tell the grievor off" in front of others. Rather he explained to her in a measured way that the cabinet had been promised to someone else. None of these events, Mr McBride testified, influenced the outcome of the job competition. The evidence having been completed, the matter turned to argument. Union Argument In the union's submission, there were two issues in this case F ) , Irst, - whether the grievor had demonstrated that she was relatively equal to the ----- -- \ 18 ~-;; three successful applicants, and if she was, then her greater seniority should trump and she shol,Jld be awarded the position in question And second, whether the competition was so flawed that its results could not, and should not, be relied upon \ The Grievor Was Relatively Equal In the union's submission, the evidence established that the grievor was relatively equal to the three successful applicants, particularly the lowest scoring of the three who shared with the grievor a remarkably similar work history Moreover, counsel pointed out that in a previous competition, the grievor had received a higher score than this individual providing further evidence that the two were comparable. In light of this background, counsel argued that there was reas~m to believe that the grievor underperformed on the day in question, and counsel suggested that the evidence amply established that she was ill when first scheduled for an interview, and not fully recovered when she was interviewed two days later Needless to say, this physical state affected her performance and cri~ically impaired her communication skills leading her to receive a low score in this area, a low score which unnecessarily and unfairly affected her overall score Nevertheless, this assessment was out of whack, in the union's view, with the available evidence that the grievor had good communication skills, and counsel referred to her performance appraisal as well as to her performance on a previous competition as evidence in support of this point. -' Counsel observed that Mr McBride repeatedly referred to the grievor's "performance" in his evidence, and the union took the position that this emphasis on performance may have coloured the overall evaluation of the grievor and done so to her detriment. For instance, at one point the - - - -.- - . - -- -*- .< --. . 19 ~ grievor's answer to a question was arguably, and concedeq in the evidence, to be worthy of a point. However, 'she did not receive a grade for that an~wer because, Mr McBriqe testified, the answer was part of a rambling and incoherent response This demonstrated, counsel argued, how the grievor's condition on the day of the competition affected her performance, which, in turn, was not given the recognition it should have received - recognition, counsel added, that the grievor had already obtained in an earlier performance evaluation In addition, there was evidence indicating that Mr McBride was aware that the grievor did possess certain job knowledge, but he failed to credit her with that knowledge because she did not demonstrate it during the interview In the union's view, this was unfair If the grievor had been credited with this job knowledge, she would , have been ~t least equal to the junior incumbent, and should, the union- argued, obtain the position on this basis. The Competition Was Flawed Counsel also advanced a number of arguments to the effect that the job competition was flawed and its result should, therefore, be set aside The evidence established, in the union's view, excessive reliance on the interview and test results, and insufficient attention paid to other relevant~ sources of information such as the job evaluations of the applicants In this regard, counsel noted that the grievor's references were not checked, nor was her personnel file reviewed Obtaining information such as this was a hallmark of a properly run competition, and the failure to obtain all of the relevant information, the union argued, constituted a fatal flaw The union also took issue with the manner in which the applicants were graded The evidence established that all of the applicants were graded in ( " 20 j '" on~ afternoon Given the number of applicants to be ass~ssed, the union was hard pressed to see how this process could have been anYthing but cursory There was a complete absence of discussion among the panel members, and no recourse, as noted above, to other relevant sources of information that might have tempered or added to that discussion. Given that the grievor had not "performed well" in this competition for the reasons already explained, recourse to these other sources of information might have resulted in her receiving a higher score and, in that way, establishing relative equality with the most junior of the. incumbents There was some information, counsel noted, that Mr McBride was not personally aware of, such as the grievor's interyiewing experience That information was directly relevant to the position in question, and to the grievor's qualifications to fill that position And that information, and other information about her skills, qualifications, knowledge and abilities, was at hand and could have been readily obtained Unfortunately, the employer failed to take the necessary steps to fully inform itself about the grievor Very simply, in the union's view, the employer had failed to give the grievor her due ) Legal Submissions Counsel referred to a number of cases in support of the assertions set out above including Palatino/Ragos/Patterson 1968/89 (Kaplan), Poole I 2508/87 (Samuels), Esmail 1186/87 (Dissanayake), Callo 1522/85 (Fisher); Clipperton 2554/87 (Watters) and Wright/Wasky 1832/91 (Watters), and took the position that the union had discharged its evidentiary obligations, and that the grievor should either be awarded the CSR position together with damages, or, at a minimum, the employer should be directed to rerun the May 1992 competition, and to do so with the usual safeguards and ~ -; 21 r. ':' subject to the usual conditions In either case, the union asked the Board to remain seized ( J ) Employer Argument Employer counsel began his submissions by arguing that the Board should exercise extreme deference when reviewing employer actions in the Context of a job com~tition It was not up to the Board to "second guess" \ management selection decision, and the Board was cautioned against doing so After reviewing a number of authorities, counsel took the position that the Board, in reviewing this job competition, should determine if there had been a miscarriage of justice In the absence of 'such a finding, the result should not, the employer argued, be interfered with Indeed, the employer took <the position that if there was any unfairness in this case, it was the ~ employer, not the grievor, who had suffered in the result. Counsel noted I that allegations of discrimination on the basis of disability and gender had been made, but then withdrawn, and counsel also pointed out that a member of management had been accused of bias, but that scant evidence had been led to support that accusation. If anything, employer counsel argued, the evidence indicated that -Mr McBride was favourably disposed toward the grievor and noted that he consistently scored her higher than the other two I panel members In the employer's view, it had done nothing wrong in this case, and there was no basis for setting aside its selection result. With respect t9 the merits, the employer argued that the grievor was not relatively equal to any of the three successful candidates It was noteworthy that the grievor had not even met the threshold requirement of achieving a passing grade Not only was she not relatively equal, but in this competition, the employer argued, she was not demonstrably qualified for I .. "\ 22 ." - th~ position \ ( j Referring to the evidence of the previous competition results, employer counsel reiterated his argument that those competitions were not relevant, ;, and that evidence about them was not admissible The result of one competition, with its own questions, different panel members and different \ threshold scores, was hardly proof of ability in another competition with its own questions, panel members and threshold scores Each competition, counsel stressed, was different. It was also a competition. The different candidates were competing against each other The fact that a person did well on a given competition did not prove that that person had the .qualifications for that job in a subsequent competition Should, counsel asked, a candidate be disqualified from participating in competitions because he or she had failed one in the past? That would not make sense, and nor did it make sense, in the employer's view, to compare the results of different competitions, and then draw conclusions about qualifications for a job from what were, after all, completely different and distinguishable events In the mstant case, if was hardly surpnsmg, in the employer's submission, that the grievor failed to pass the threshold requirement for the position as the job requires excellent communication skills, good judgment, conscientiousness and attention to detail Each CSR has a case load of 750-800, and superior organizational abilities were necessary to manage this case load. Unfortunately, and for whatever reason, the grievor did not demonstrate these qualifications for the job in this particular job competition, and having failed to meet the threshold she' was properly, in the employer's view, eliminated from further consideration her greater ( 23 seniority notWithstanding Counsel-reviewed some of the evidence surrounding the competition, and pointed out that the grievor's application was filled with mistakes. It was ~ also noteworthy that the grievor did not even bother updating her resume or targeting her application letter The grievor's efforts were, counsel argued, properly compared to those. of the successful candidates\ who took obvious time in preparing their application materials. The differences between the grievor and the successful applicants were further demonstrated when the content of the resumes was examined The grievor's resume does not, counsel pointed out, even bother to indicate that she had been a CSA In contrast, the resumes of the successful applicants were up-to-date and, more importantly, demonstrated that they had relevant backgrounds and qualifications. Two of the successful applicants were doing the CSR job at the time of the competition, and understandably did well at the competition, while the other, the one with the score that was closest to the grievor, held the CSA job, and was able to use that background and experience, which was not dissimilar to that of the grievor, and achieve a high score in the comp~tition and obtain the position (even though there was little, as demonstrated by the position descriptions, overlap between the CSA and CSR positions) In addition, all three of the successful , applicants had university degrees, and counsel surmised that this credential, while not a requirement for the job, undoubtedly assist~d these individuals by providing them with superior communication skills In the employer's view, the questions that were asked at the interview were relevant to the position in question Counsel pointed out that Ms Lee-Quai, a union witness, confirmed this assertion in her evidence when ) -- ___n_________ -------------..- ) j 24 ~ ~ she testified that one would expect a CSR to know the answers to the ir1lerview questions For whatever reason, the grievor did not demonstrate that she knew the answers. The fact that one of the panel members - Mr McBride - knew that the grievor could do better anc~ knew more was,in the I , employer's estimation, hardly relevant. It would not be proper, couns~1 argued, for panel members to start assigning candidates marks for ( knowledge they "knew" the candidate possessed. If this were allowed, job competitions would quickly degenerate and become a farce In this case, / counsel pointed out that the grievor did not even come close She received a a failing grade The lowest ranking of the three successful candidates received a much higher score Even if the grievor's total was adjusted to give her a few extra marks here and there, one could not, following a serious review, describe the grievor's results as comparable with those of the lowest ranking of the successful applicants The gap, employer counsel argued, was simply too great. This was yet another reason for concluding that the grievance should be dismissed Employer counsel conceded that the only reference checks were for the top three scoring applicants. In this case, however, there was no reason to believe, given Mr McBride's legitimate concerns about the grievor and her performance, that a reference check would have rehabilitated her failing score Indeed, all that a reference check and review of the personnel file would have uncovered, counsel argued, was discipline on the grievor's file and concerns about her performance Moreover, this was definitely not a c~se, in the employer's submission, where the decision was made based solely on an interview - counsel noted that the application materials were also reviewed and that the panel members were familiar with all of the applicants Whatever procedural flaws might exist, they were insufficient, ! ( ", 25 ~ ., in the employer's view, to vitiate the finc:i! result- a result which counsel argued was not only correct but which should be accorded a high degree of J deference The employer also took the position that there was no doubt but that had the procedural defects not occurred, the end result would still have been exactly the same Accordingly, and for all of the foregoing reasons, counsel asked that the grievance be dismissed - Union Reply In reply, counsel noted that the standard of review is correctness, not deference The union also argued that the competitIon was flawed for it failed to systematically gather all relevant information Indeed, there was considerable evidence that the grievor was~ relatively equal to the lowest scoring of the candidates. In the union's submission, if relevant information about her communication skills, namely her good performance appraisal - not irrelevant information about her "performance" on the day in question - was considered, the gap between her and the lowest scoring incumbent would be reduced to approximately 10%. There were many cases, - counsel submitted, standing for the proposition that a senior employee should obtain a job where the overall difference was only 1 0%. Accordingly, and for all of the reasons earlier advanced on the grievor's ( behalf, counsel again asked that the grievance be allowed - ~ -' Decision Having carefully considered the evidence and arguments of the parties, we J have come to the conclusion that the grievance should be allowed in part. Simply put, we find that the competition was flawed, and we issue a declaration to that effect. However, we are also of the view, on the evidence before us, that even if there were no flaws, the result, almost " -'- I ~ 26 ~ . certainly, would have been the same We are, therefore, limiting our relief to the granting of the declaration. In case after case this Boarcf has held that " the employer must design and utilize a selection process in job competitions that is consistent with the pl{rposes of the selection process Thus, under this collective agreement, the process must be designed to elicit in a systematic manner sufficiently 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, candidate,s can be ~ndertaken and the final selection made." See Ouinn 9/78 (Prichard) In this case, the employer heavily relied on the interview and test results in arriving at its final selection decision The evidence establishes that the grievor was eliminated from the competition based on her interview and test results, but before her personnel file was consulted and her supervisors contacted As the Board has noted in a legion Of cases, where a selection panel relies inordinately on interviews it does so at its peril - Indeed, the Board has set aside competitions and ordered reruns on this basis alone W'hile we take no issue with the content of the interview, or, in general, with the questions that were asked and the grades that were assigned, we find that the employer deprived itself of other relevant sources of information -information that it should have considered in assessing the candidates The fact that some of this information was obtained for the (candidates who made it to the short list is, of course, of little assistance as the information should have been gathered and considered for all applicants granted an interview as part of the employer's obligation to systematically and comprehensively gather information about --- - ( .. 27 ';' ( candidates. This requirement is not; needless to say, new It has been' a l mainstay of the Board's jurisprudence for a very long time It should also l' be noted that it is the employer who has carriage of the Job competiti9n / process, and it is therefore the employer who is responsible for ensuring that all relevant information is gathered during a job competition In this case; had there been reference checks, and had the grievor's personnel file been thoroughly reviewed, it is likely that the panel would have become aware that the grievor did have some job knowledge which she had failed to communicate during the interview In addition, had the grievor's personnel file been reviewed, the panel would have found the February 25, 1991 performance appraisal which, in the overall, ranks the grievor midway between satisfactory and commendable (It would have also, needless to say, found Mr McBride's warning letter) In any event, the panel deprived itself of the opportunity to obtain information about the grievor This constitutes a flaw in the process. \ However, and with some reservations, we have determined that a more thorough gathering of information would not, in all of the circumstances of this case, have changed the result. The grievor's performance evaluation, while good, was not sterling, and there is preinterview evidence, namely the application ahd covering letter that She submitted for the job, which casts some doubt on her preparation for the interview and which suggests that her communication skills were not, at this time, and in this instance, 'v unfairly evaluated Simply put, we are not satisfied that recourse to the additional information would have made a difference particularly given the importance of communication and organizational skills to the position, and the weight therefore appropriately assigned by the selection panel to these - , ( ji 28 J . factors, not to mention the strength of the applications and interview and test performances of the successful applicants. This is not a case, like Poole, 'referred to by the union, where information that would have made a difference could have been readily obtained The grievor and the successful candidates are simply too far apart, and having heard all the evidence, and having read all the relevant recQrds, we have little reason to believe that the additional information, had it been obtained, would have advanced the grievor's application Without a doubt, the grievor was not given all of the credit during the interview and test for her various answers as she might have been As was established in the cross-examination of Mr McBride, his grading of her was not overly generous, and it is fair to say that he gave her few break when it came time to assessing her various responses However, while a handful of questions might have been marked differently, and while other assessors might have been. more generous in the assignment of grades, we cannot say, having carefully reviewed the grievor's answers and grades (notwithstanding the fact that Mr McBride was apparently the most generous of the interviewers in the assignment of grades), and those of the successful applicants, that there was any overall unfairQess in the grading process. Certainly, there is no evidence that the grievor was singled out for particularly harsh treatment when it came time to assign grades, nor is there any credible evidence supporting the assertion that Mr McBride was \ biased against the grievor In our view, he was right not to bring his own knowledge to bear in the assessment of candidates. While the evidence does suggest that the grievor might have received some additional points for a number of questions, we find that, on balance, her final grade accurately reflects her performance in this competition, and that ~ ",0;.. 29 \. '" performance was .by no stretch comparable to that of the three successful applicants Very -.?imply, the grievor failed to meet the threshold requirements in this competition. The fact is that she failed to meet a threshold, and there is nothing suggesting that it was an improper one In these circumstances, reference checks and recourse to interview files are hardly likely to have turned the tide It would serve little purpose to order a rerun in these circu'11stances ObViously, as the foregoing suggests, the union has not persuaded us that the grievor was at least relatively equal to the lowest scoring of the incumbents. The fact of the matter is that this particular competition did not go well-,for the grievor It should be noted that she had never worked for a CSR, and her CSA experience was limited in nature and scope, even when some of her duties, such as interviewing on an experimental basis, are considered The evidence demonstrates that the grievor was not well on the day of the interview Had she been feeling well, the interview would, undoubtedly, have gone better But the fact of the matter is that this is not a sufficient reason to order a rerun For whatever reason, the grievor did not on the day in question demonstrate sufficient knowledge and skills to be found qualified for the position, and it is worth noting in this respect that the union's witness, Ms Lee-Quai, testified that she would expect a CSR to know the answers to the interview and test questions. In many cases, the grievor did not know the answers, or through 1)0 fault of the employer, was \ unable to effectively communicate the answers she knew This is not a basis for awarding the grievor the job, or directing a rerun. The evidence \ does not establish relative equality in the first instance, and while we have , ) ------- - ~ -- - I ii ',.~ 30 ~ ^ found that there were flaws in the competition, this is not an appropriate case, having also found that if the flaws had not occurred' that the result would, almost certainly, be the same, to direct a rerun It is true enough that the grievor had; in a previous competition, been found to be qualified for the CSR position And it was obvious, when the grievor's competition results in this case were compared with other competition results for this same position that the results in this case are not as favourable Union counsel strongly argued that the results of this other competition should be taken into account, and noted that it made little \ sense that the grievor would IDe qualified for the job on one occasion, but unqualified for that very same job, several months later This state of affairs indicated to the union a problem with the screening process, not with 'the grievor ( ( Notwithstanding some temptation to find in favour of the union on this point, it is our view that each competition is different. In the same way that it would not be appropriate to hold the negative results of an earlier competition against an employee, it is equally inappropriate to drawn any conclusions about the positive results. Each competition must be separately considered, evaluating as it does, a particular candidate on a particular day Both the panels and the questions are usually different - they apparentlY were in this case - but even if they were the same, other variables, including the nature of the applicant pool, not to mention individual performance, human nature being what it is, will inevitably come into play precluding using the results of one competition as evidence of anything when the results of another competition are subjected to scrutiny Moreover, it would be-quite unfair, for example, if a candidate scored badly \ ~ i ~ of: ~_IS"... /~- 31 \ I on one competition to have those results held against him or her on another competition Since the events outlined in this award, the grievor has achieved her goal of obtaining the CSR position In her evidence, she impressed us with her commitment to that position and her continuing interest in her work. No doubt, the grievor will render valuable service to the emplo~er for years to come However, while we do find that there was a flaw in this particular I competition, and declare as much, we cannot find that the grievor was either relatively equal to the successful candidates, or that this is an appropriate case, having found a flaw, to direct a rerun DATED at Toronto this 29th day of September ,1995 ~""'/,""'----- ---------------- William Kaplan Vice-Chairperson ! 1<1 (j!f-;C-?-vt~J i//I Thomson. Member ~e . F-c~i~t v ~j Member \ L -~._-