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HomeMy WebLinkAbout1992-3289.Kai.23-04-97 r~ i 1!!~~ !i~1;~~~"~.~\' ,~~', ti)~~~~l- ~~~111t..."'.", ~~r ~~ ,I ,}~..~~~ ONTARIO EMPLOYES DE LA COURONNE '.';' 'i~'" "': W CROWN EMPLOYEES DE L'ONTARIO ~'~nt~;, .;~. ~~,~:~. GRIEVANCE COMMISSION DE 1111 SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONEfTELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACS/MILEfTELECOPIE (416) 326-1396 GSB # 3289/92 OPSEU # 93A457 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Ka i) Grievor - and - the Crown in Right of Ontario (Ministry of the Solicitor General & Correctional services) Employer BEFORE R H. Abramsky Vice-Chair FOR THE S Philpott GRIEVOR Counsel Koskie & Minsky Barristers & Solicitors FOR THE 0 Costen EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING November 20, 21, 1996 February 10, 1997 March 7, 1997 April 1, 1997 'C :T AWARD At issue is whether the grievor, Yail Kai, was improperly denied the pOSitiOn of Fire Safety Officer in the Office of the Fire Marshall pursuant to a job competition held in June 1992 In November 1992, Mr Kai filed a gnevance regard10g that Job competitiOn, alleg10g that he was refused the position because of systemic discrimination 10 violation of Article A. 1 of the collective agreement. He also alleged that he was denied at least five positiOns since 1982, an allegation which was not pursued. At the heanng, however, the grievor further alleged that the competition violated his rights under Article 4.3 1 of the collective agreement which provides as follows. 4.3 1 In filling a vacancy, the Employer shall give pnmary consIderation to qualifications and ability to perfonn the required duties. Where qualifications and ability are relatively equal, semority shall be the deciding factor A. The Preliminary Objection At the outset of the heanng, the Mimstry rmsed a preliminary objection based on delay in the hearing of this grievance. I issued an oral ruling denY10g that motion, and the parties requested that the baSiS of that ruhng be set forth 10 the wntten Award. The pertinent facts are that although the grievance was filed 10 November 1992, the hearing did not commence until November 20, 1996 A heanng had originally been scheduled for August, 1993, but did go forward. Thereafter, no actiOn was taken to forward the grievance until August 1996, a penod of three years. Neither party received 2 r :r any notice from the Grievance Settlement Board that the case had been placed on an inactive list or would be terminated for Inaction. Instead, it apparently just sat In abeyance until the Union moved to have it heard in August 1996 The Employer argued that the Union's three year delay In mOVing thiS case to heanng should preclude it from proceedmg. It submits that with the passage of so much time, Its ability to defend its actiOns have been preJudiced. It pomts out that in a Job competition gnevance, more than the documentary eVidence IS needed, and subnuts that the parties' recollection of the specifics of the competition are cntical - who saId what and how the grievor answered questions during the interview The Union's three year delay, in its view, inherently limits the witness's ability to recall such matters and therefore prejudices the Ministry's ability to defend its actions. It also submits that the interests of labour relations are not served by allowing a case tlus old to proceed to hearing. The burden was on the Union, it argues, to move this case forward in a timely fashion, a burden it did not fulfill. It argues that it would be unfair to require the Employer to now, in late 1996 and early 1997, to defend actions taken In June 1992 as a result of the Umon's delay In support of ItS contentiOns, the Mirustry cites to Re OPSEU (Black) and The Crown in Right of Ontario (Ministry of Revenue) (1990) GSB No 1795/89 (Stewart, Vice-Chair); David E. Smith and OPSEU and The Crown in Right of Ontario [1995] 3 - ,- '; OLRB Rep June 893 (Liang, Vice-Chair), Clements and The Crown in Right of Ontario(l981), GSBNo 112/80 (Prichard, Vice-Chair) The Urnon opposed the Ministry's motion, noting that the gnevance was timely filed and put the Employer on notice, at an early date, regard10g the gnevor's compla1Ot concermng the job competition. It had notice, it argues, to prepare a defense whtch, 10 its view, distmguishes this situation from the cases cIted by the Employer which all involved delay in the fihng of a gnevance. Counsel for the Urnon could proVide no explanation for the three year delay, surmising that It got caught in a cost-cuttmg penod where pnority was given to cases involving discharge and harassment, and notes that thts was not something that the grievor had any control over and consequently should not be penalized as a result. The Union argued that while I have jurisdiction to dlSffilSS a case for delay where a prejudicIal effect IS shown, it asserts that prejudice has not been established. The test, it submits, is whether the delay has made it impossible for the board of arbitration to determine whether a Violation of the collective agreement has occurred. In support of its contentIOn, the Urnon Cites The Great A & P Co. of Canada, Ltd and Ontario Human Rights Commission et aI, [1993] 13 O.R. (3d) 824 at p 831(Ont. Div Ct.), whtch apphed that standard 10 the human nght context and allowed a heanng to proceed SiX years after the complaint was filed. The Urn on also CItes Re Nisbett and Manitoba Human Rights Commission et al. (1993), 101 D.L.R. (4th) 744, at p 756 (Man. c.A.), whtch determined that "[i]f there has been prejUdICe of such a kind and 4 .. , degree as to significantly impaIr the abihty of a party to receive a fair hearing, then the administrative tribunal may well lose jurisdiction. " Neither standard, it contends, has been met by the Employer's vague claIm of Inherent prejudice. At the heanng, I demed the Ministry's motion on the basis that no actual prejudice had been shown. In my view, the fact that this case had not been placed on an "inactive" list or temunated for 1Oaction sigmficantly affects the onus as well as the outcome of the preliminary objection. When there is an administrative rule and practice wluch terminates a case for inaction after a certaIn penod of time, the onus is on the party desinng the case to go forward, usually the union, to establish specIal cIrcumstances that would excuse the delay In such cases, actual prejudice need not be shown. See, e.g., OPSEU (Dalton) and The Crown in Right of Ontario (Ministry of the Attorney General)(1995), GSB No 2372/91 (Gorsky, Vice-ChaIr) But in this case, the grievance was never placed on an "inactive" list nor were the parties' notified that it would be term10ated for inaction. Consequently, the onus is on the party seek10g disnussal, in this case the Ministry, to establish prejudice. After reviewing the cited case law, I find the test set forth in Re Nisbett and Manitoba Human Rights Commission et al., supra at p 752 to be appropriate. There the court discussed the pnnciples of natural justice at issue when there has been a delay 10 proceed1Og to hearing. It ruled that "the pnnciples of natural Justice and the duty of fairness which are part of any administrative Civil proceed1Og 10clude the nght to a fair 5 i': , hearing. " It continued. "If there has been prejudice to such a kind and degree as to significantly impact the ability of a party to receive a fair hearing, then the admimstrative tribunal may well lose jurisdiction." In my view, the principles of natural justice apply to arbitration proceedings and includes the nght, for both parties, to a fair heanng. If the delay slgmficantly impacts the ability of a party to present a defense and therefore receive a fair heanng, then the heanng should not proceed. In so rulmg, I find the cases cited by the Ministry to be distmguishable All three mvolved delays in the filing of a gnevance, precluding the employers from making a timely investigatIOn and thereby prejudicing the employers' ability to defend the claims. In the instant case, the grievance was filed five months after the job competition in question. The gnevance put the Ministry on notice that the job competition was being challenged on the basis of systermc discrimination. The Ministry was therefore able to timely investigate the grievance and prepare a defense. Applying the Nisbett standard to the facts here, I conclude that the Ministry, at the outset of the heanng, did not establish prejudice of such a kmd and degree as to slgmficantly impact its abihty to receive a fair heanng. There was no assertion that witnesses for the Ministry were not available or that documentary evidence had not been retamed. Although the passage of time might well have caused recollectIOns to fade, that had not yet been estabhshed. Accordingly, although the motion was demed, the Mimstry was given leave to raise the Issue agam either during the hearing or at the end of it, should 6 ;- it estabhsh that actual prejudice eXisted. It was also noted that the issue of delay may be relevant to the question of remedy if a vIOlatIOn was found. In denying the Ministry's prelimInary objection, however, it was and is not my mtent to condone the delay m thiS case or to imply that a delay of three years is reasonable. It is not reasonable Indeed, allOWIng three years to pass with no action to move the case forward is most unreasonable and, m my view, borderlines the pOInt where prejudice may be assumed without an actual showing. Arbitration is designed for the expeditious resolution of grievances. The parties' collective agreement recognizes this in Article 27, the Grievance Procedure, where It states that "[i]t is the intent of this Agreement to adjust as quickly as possible any complaints or dIfferences between the parties. " Leaving a case to languish for three years significantly undermines that mtent. But dismissal of a grievance is a very powerful, and final, way of dealing with delay and for dismissal to be appropriate prejudice which precludes a fair hearing must be shown. B. The Job Competition The Job competition in question began with a postmg m May 1992, for a "Secondment Fire Safety Officer" Tlus was a new pOSition in the Research and Standards Banch of the Office of the Fire Marshall ("OFM") Although there were Fire Safety Officers employed In the OFM, tlus was the first time such a positIOn was created for the Research and Standards Branch. I 7 .. The purpose of the position, according to Acting Manager Research and Standards I Joshy Kullungal, was to serve as a bridge between the technical engineers in the Research / and Standards branch and the fire services commuruty - muruclpal fire departments as well as buildmg owners and managers. While the engmeers m the urut had the technical expertize, they lacked experience in the field. Mr Kullungal wanted an individual who could bnng a strong fire safety and mspectlon background to the engmeers as well as commurucate technical mformation from the engineers to the fire services community In pertinent part, the posting states as follows Secondment FIRE SAFETY OFFICER RESTRICTED TO STAFF OF THE OFM An opporturuty for a secondment pOSItion IS available for OFM staff to work in the Research and Standards Section of the Office. The responsibihty of the position includes. * Inspect buildings and premises to evaluate construction, fire alarm system, exits, evacuation programs, etc. . AdVise building managers of work necessary to comply With regulations lie Perform follow-up inspections to evaluate for compliance With Acts, servmg legal orders when necessary * Advise and instruct municipal fire department(s], builders, development orgaruzations, etc. of fire safety and prevention * Conduct mstructlons program * Research and prOVide wntten reports QUALIFICATIONS Thorough knowledge of fire fightmg, pnnclples of life safety, protection, prevention and legislatIOn, acts, codes and standards, knowledge of buildmg construction, knowledge of court procedures and laymg of charges~ expenence m the delivery of muruclpal fire services~ completion of fire prevention course at Ontario Fire College or equivalent~ excellent communicatIOn, research and organizational skills, good Judgment. 8 ---..-- (Ex. 2, Tab 8) At the time of this posting, the griever was on secondment to the Office of the Fire Marshall as a Fire Services Advisor Trainee His secondment was the result of an employment equity program designed to bnng more visible minorities, women and natives mto the Office of the Fire Marshall. His home posItion was Safety Consultant With the Ministry of Government Services, Employee Health and Safety Branch, a posItion he had held since 1978 In that position, he mspected government buildings with respect to fire safety and occupational health and safety issues, developed fire evacuation programs for government buildings, conducted safety, first aid and C.P.R. training programs for Ministry employees, investigated accidents, reviewed ninety percent drawings for comments in accordance with Building Code and Fire Code requirements and conducted mdoor air quality tests. The grievor began working for the prOVince 10 1976 as a Correctional Officer, after he moved from Hong Kong to Canada. In Hong Kong, the grievor had ten years of fire fightmg expenence (serving as an ASSIstant StatIon Officer, Station Officer and Area Commander), and four years experience in fire prevention, serving as an ASSIstant Division Officer and Prosecution Officer He also has taken extensive coursework 10 fire safety and fire preventIon. 9 :i' In his secondment positIon as a Fire Services Advisor Tra1Oee, the gnevor observed Fire Services Advisors advise municipal fire departments regard10g how to establish and administer such departments. The May 1992 post1Og had been preceded by two others for a "Fire Safety Officer" earher 10 1992, both of which had been canceled by the Mimstry Exactly why they were canceled is not clear The first one, posted on February 24, 1992, was an "open" competitIOn (i.e., open to anyone to apply), for the position of Fire Safety Officer, Fire Safety Officer 2. The grievor applied for tlus position and, in prepanng for it, requested a copy of the job specification. He was sent a copy of the position specification for the job in question. (Ex. 2, Tab 6) On May 8, 1992, he was interviewed by a three member panel, including Doug Crawford, Manager of the Research and Standards Branch, Christ10a Patterson, ASSIstant Manager, Research and Standards and some one from Human Resources. The grievor could not recall the type of questions asked during the 1OtefV1ew but acknowledged that technIcal questions were asked. He also testified that the commUnIcatIon aspect of the Job was evaluated separately from the technIcal questions. Specifically he recalled that he had to prepare a presentation entitled "The Problems that Face Fire Services in Ontano" wluch was used to evaluate lus communicatIon skills. 10 The following Monday, May 11, 1992, a second job posting for a Fire Safety Officer, Fire Services Adviser 1, with a salary range of $98979 - $1,12984 per week, was posted. The grievor was not aware of It and did not apply for this position. In June 1992, he learned of a third posting, the secondment post1Og, and that the first post1Og for wmch he had applied had been canceled. The gnevor was sent a letter on June 15, 1992 that the initial competItion had been canceled, but no explanatIon was provIded 10 the letter (Ex. 2, Tab 9) The gnevor had no personal knowledge of why the first two post1Ogs had been pulled. He acknowledged that at times there were freezes on open competItions and he had heard that the second posting contained an error in the salary But he had also heard, and suspected, that the po stings were pulled because the person the Ministry wanted for the job, Bruce Weaver, had not applied. The secondment posting was restricted to staff of the Office of the Fire Marshall. Initially, the grievor was informed that as a Tra10ee on secondment from another Mirustry he was not eligible to apply, but that deciSIOn was later changed to allow him to apply, wmch he dId. The secondment posting was prepared by Act10g Manager Research and Standards Joshy Kullungal. Me Kullungal testified he had the Idea for the Fire Safety Officer pOSItIon 10 late 1991 and that Manager Crawford supported the Idea and sought approval for it. He testified that he helped devise the pOSitIOn specificatIOn for It, wmch was 11 completed in January 1992. He was not aware, however, of the first two postmgs or that interviews had been conducted by Manager Crawford. He testified that he was not involved in the recruitment for the position mitil he was mformed by Manager Crawford in either April or May 1992 that the posItion could be filled through a secondment. He then stated that he drafted the posting, usmg language from postmgs from engmeenng posItions and adaptmg where needed. The content of the secondment postmg, however, uses language nearly identical to the earher postmgs. When tlus was explored on cross- examination, Mr Kullungal still beheved that he had wntten it on his own, without knowledge of the earher postmgs, but stated that it was possible that he had done an -- earlier written draft for Mr Crawford. He could not recall. In all, there were three apphcations for the June 1992 postmg: Bruce Weaver, the grievor and another mdivldual who later Withdrew After reviewing the resumes of the applicants, Mr Kullungal decided to intefVlew both the grievor and Mr Weaver The questions used dunng the mterview were prepared by Mr Kullungal, With some input from Mr AI Suleman, an engineer in the department for whom partiCipating in the mtervlew was a developmental assignment. The questions were prepared at around the same time the postmg went up, apprmQmately a month before the deadhne. They were prepared before Mr Kullungal knew who applied for the position. The mterview consisted of 25 questIOns 12 ----.- The first seven questions related the applicant's experience with inspection, assistmg fire services/other clients on fire safety issues, preparing guidelines on fire safety Issues, providing instructional packages, researching fire safety Issues, and knowledge of fire fightmg procedures and techniques. A final experience question asked what additional skills and abihtles the apphcant possessed that would be of value 10 the job These were asked, accordmg to Mr Kullungal, to proVide the candidates with an opporturuty to share their particular expenence and how It applied to the Fire Safety Officer posItion. In hiS views, resumes were not the way to assess the candidate's experience and were useful only for candidates to get their "foot in the door" He acknowledged, however, that had he known that the grievor's experience was as extensive as he testified to at the hearing he would have been given higher marks. Most of that same mformation, however, was set forth on Mr Kai's resume. The majority of the questions probed the applicant's technical knowledge about the Fire Code, Building Code and other legislation, fire fighting and fire prevention pnnclples, Fire Marshall orders and so forth. Several questIons also attempted to bring out the applicant's mterpersonal skills by askmg how the candidate would deal With a fire chief or buildmg owner 10 vanous scenarios. Although the grievor contested the "tnvlal pursUit" nature of some of the questions, he acknowledged that the questIons were relevant to the job He further acknowledged that some of lus answers during the interview were wrong, He testified 13 -- that on one question - quesion #8 - Mr Weaver provided a wrong answer but received full marks. The eVIdence, however, did not estabhsh that Mr Weaver improperly answered the question. But there was one question, question # 19, for wInch Mr Weaver received no credit for his technical answer but still received 2 points (out of 5) for communication skills. There were sample answers for the techmcal questiOns, but there was no standard scoring, and credit appears to have been given for other correct answers. Communication skills mcluded the "clarity of response, precisement of answers, lack of verbosity, [and] delivery" (Ex. 2, Tab 12) Interpersonal skills mcluded the "abihty to mterface with people, ability to work with limited supervisiOn (self-starter), ability to function in a team environment." (Ex. 2, Tab 12) Mr Kullungal also testified that he also considered the candidates' eye contact and nonverbal commumcatiOn. Mr Kullungal based his marks on how well, in his view, the candidate answered the questions. Mr Kullungal briefly discussed the process with Mr Suleman - to look for how well the candidate responded, how effectively the answer was communicated, how the candidate perceived and understood the question, the number of prompts required and so forth, but he acknowledged that Mr Suleman "may not have understood exactly what I was lookmg for " Five categories were evaluated techmcal knowledge, communicatiOn skills, experience, and interpersonal skills. The speCific categones evaluated and the number of 14 points assigned to each category vaned, depending upon what was bemg asked. All 25 questions, however, had a category for communication. Mr Kullungal testified that he decided to evaluate the applicant's communication skill through their responses to all of the intelView questions rather than separately In his view, tlus was a more realistic way to assess the candidate's commumcatlon abilIties because the Job Itself mvolved dlscussmg techmcalmformation with fire selVlce clIents. Mr Kallungal testified that during the intelVlews, he asked all of the questIOns. He took only IDlmmal notes of their responses, trying mstead to look at the candidate - their responses, body language, eye contact and so forth. He could not recall from his notes the content of the grievor's answers or those of Mr Weaver and had no independent recollectIon of them. Nor did the grievor The grievor could not recall his answers from the panel's notes and had no independent recollection of his answers to the interview questIons. Both Mr Kallungal and Mr Suleman independently marked their scores, tallied them up and weighted them. The raw scores were weighted as follows. technical knowledge 40%, communication 20%, experience 20% and mterpersonal skills 20%. Both evaluators rated Mr Weaver more highly than the grievor Mr Kallungal gave the gnevor the following scores. 34 out of 50 for technIcal knowledge~ 85 out of 140 for commumcation, 17 out of 35 for interpersonal skills and 23 out of 45 for expenence. After welghtmg these scores, the gnevor's final mark from Mr Kullungal was 593 Mr Suleman scored the gnevor 36/50 for technIcal knowledge, 118/140 for communication, 15 -- ~ 32/35 for interpersonal skills and 28/45 for expenence, for a total weIghted score of 764 Mr Kullungal rated Mr Weaver as follows. 45 5/50 for technical knowledge, 123/140 for commumcation skills, 33/35 for interpersonal skills and 36/45 for experience, for a weighted score of 88 8 Mr Sulemen rated Mr Weaver with 44/50 for technical knowledge, 130/140 for commumcatlOn, 35/35 for mterpersonal skills and 36/45 for experience, for a total weighted score of 89 8 When the scores were averaged, Mr Kai averaged 67 85 and Mr Weaver averaged 89 3 In Mr Kullungal's opmion, based on the interview, Mr Weaver was SIgnificantly more qualified than the grievor in all four areas - experience, technical knowledge, commumcatlOn skills and interpersonal skills. In Ius view, although the grievor was qualified to do the Job, there was "no question regarding who the superior candidate was." Apprmamately a week after the intervtews, Mr Weaver was informed of his selection and the grievor was advised that he was not the successful candidate. Mr Kullungal testified that the grievor came to his office in early July, after bemg informed of the results, and told lum that "thiS was one of the fairest competitions I've been in." Mr Kullungal testified that he recalled tlus clearly because it was the only tIme a candidate 10 a competition had said something like that to rum. Mr Kal had no recollection of saying this. He simply could not recall. According to Mr Kullungal the grievor never indicated any problem With the competition and he was shocked when he receiVed a copy of the gnevance five months later Mr Kal explamed that he waIted to 16 , file the grievance with the Idea that he would be more favourably viewed If he did not complain. Mr Kullungal decided to proceed with the Job competition through an interview It was the method he normally followed and m his expenence, It produced the best results and represented the most life-like assessment. There was no evidence that the candidates' supervisors were contacted or that the candidates' personnel files and pnor evaluatIOns were reviewed. Mr Km's personnel files and evaluations were not disclosed at the heanng. Sllnilarly, there was no evidence regarding how lus supervisors Viewed him. Prior to the job competition, Mr Kullungal had some mmor dealings With Mr Kai when he called regarding questions about the Fire Code, but he had worked, on occasion, With Mr Weaver On one project that Mr Weaver had while on an earlier secondment to the Research and Standards Branch, Mr Weaver had reported to Mr Kullungal. In addition, Mr Weaver had interactions with Mr Kullungal on a number of Fire Code issues. Mr Weaver's initial secondment with the Research and Standards Branch ended on February 24, 1992, although he thereafter timshed up a number of projects. But accordIng to Mr Kullungal, he did not know Mr Weaver's qualIfications at the time of the postIng and he was hoping for more than three applicants. Mr Weaver has an extensive background in fire fightmg, building InspectIOn and fire prevention. In 1977, he began workIng as a firefighter WIth the Toronto Fire 17 Department, then became a Fire PreventIon Inspector, inspectIng all types of buildings for compliance with the Fire Code, BuildIng Code and mumcipal by-laws. In 1981, he became a DIstnct SupervIsor, supervising Fire Prevention Inspectors, coordinatIng InSpectIOns and training staff He held that positIon until 1987, when he JOIned the Ontano public service as a Fire Safety Officer In the Office of the Fire Marshall. As a Fire Safety Officer he Inspected hotels, motels and nursing homes and advised property owner and operators regarding work needed to comply with legIslation. He performed a number of speCIal proJects, including an assignment with the Training Unit In which he assIsted I I municipal fire departments WIth inspections, swearing court informations and attending I court, followed by his secondment, which was assigned to him, to the Research and Standards Branch where he prepared and presented proposed changes to the Ontario Fire Code, developed training packages, and inspected buildings for use by the engineenng staff and the Fire Code Commission. I Mr Weaver did not apply for the first two posting because he was not aware of I them. He further testIfied that he would not have patd any attentIOn to them because they I were for Fire Safety Officer positions, a position he then held. There was no indicatIon on the first two postings that the pOSItIon was for the Research and Standards Branch. He was not Invited to apply for the secondment posting. It had been faxed to him as, he belIeved, It was faxed to all other Fire Safety Officers. 18 The grievor testtfied that he believed that the origmal postmgs were canceled because Mr Weaver did not apply for them and that the job and interview questions were "tailor made" for Mr Weaver It was his vlew~ although he had no personal knowledge of tlus, that Mr Weaver had been performing the job in question pnor to the competition, creatmg an unfaIr advantage for Mr Weaver There was no evidence that Mr Weaver performed the dutIes of the job at issue prior to the competitIon. He had been seconded to the Research and Standards Branch, but was Involved in a variety of projects. Although It IS not clear why the first two job postmgs had been canceled, there is no evidence to support the conclusion that they were canceled because Mr Weaver did not apply Nor is there any evidence that either the job or the questIons on the mtefV1ew were devised to assist Mr Weaver On the contrary, the questions in the interview were clearly relevant to the position. At the hearing, Mr Weaver, who IS a white male, appeared to be very personable, knowledgeable and had excellent communication skills. Mr Kal also appeared to be quite knowledgeable and personable, but it was sometimes difficult to understand Ius testtmony English is not his first language. Both Mr Kullungal and Mr Suleman are visible minonties, and the Research and Standards Branch employs a large number of visible minoritIes. There was some indication that the Office of the Fire Marshall IS not as well represented (hence Its partICIpatIon 10 the employment eqUIty program) but no statIstIcs or eVidence on this pomt was presented. Further, there was no eVidence of any bIaS or 19 discnmination by Mr Kullungal, and in fact, the gnevor testIfied that it was not Mr Kullungal but the system that he used that was at fault. The Fire Safety Officer secondment was scheduled to be for one year But the sItuatIOn has worked out so well that Mr Weaver's secondment has been renewed every six months since July 1993 and he remams on secondment at the present tIme. Should lus secondment not be renewed or if the grievor was placed in the pOSItIOn, Mr Weaver would return to lus home position. After the June 1992 competItion, Mr Kai did not apply for any other postmgs WItlun the Office of the Fire Marshall. In June 1996, Mr Kat was declared surplus from his home position and he elected to take early retirement. Arguments of the Parties The Union argues that Mr Kai was unfaIrly and wrongly denied the Fire Safety Officer position. It raIses concerns about how the competition was run and how the Mirustry assessed the grievor It submits that Article 4 3 1 of the collectIve agreement reqUIres that "[ w ]here qualifications and ability are relatively equal, seniority shall be the deciding factor" and contends that the eVIdence established that Mr Kal was more than equal to Mr Weaver and therefore should have, because of lus sIgruficantly greater seruonty, been awarded the posItIon. It argues that the onus was on the Mirustry to show 20 .- that Mr Weaver was supenor by a substantial and demonstrable margm, a burden which It failed to meet. In terms of the competition, It argues that the manner m which the Ministry lrutlated it raises questions about the bona fides of the competition. It submits that the evidence shows that there were two prior postings for the same Job (wInch were not applied for by Mr Weaver) and then canceled without explanation. It notes that With each postmg the field of eligible applIcants narrowed and that Mr Kai was ongmally informed he was not eligible to apply for the secondment posting. It also contends that it is simply not believable that Mr Kullungal whose idea it was to create this position and to whom the successful applicant would report had not been informed of the two prior po stings which, it asserts, further raises questions about the bona fides of the Ministry's actIons. On a more concrete level, the Union argues that the Ministry's reliance solely on the interview was a fundamental flaw and submits that the jurisprudence is clear on this pomt. In support of its position, it cites to OPSEU (N Poole) and The Crown in Right of Ontario (Ministry of Health)(1988), GSB No 2508/87 (Samuels, Vice-Chatr); Quinn andMinistry of Transportation & Communications (1979), GSB No 9/78 (prichard, Vice .Chair), Newburn and Phillips and The Crown in Right of Ontario (Ministry of Health) (1982), GSB Nos. 485/81 and 486/81 (Venty, Vice-Chair); and OPSEU (W.P.Eaton) and The Crown in Right of Ontario (Ministry of Transportation and Communications)(1987), GSB No 0629/85 (Knopf, Vice-Chair) 21 -- --- Another significant defect, it argues, was the presence of Mr Kullungal on the Interview panel when he had worked with and was familiar with Mr Weaver That, it belIeves, combIned WIth the Mimstry's sole reliance on the intervIew (and consequent failure to check with Mr KaI' s supervisors or pnor evaluatIOns) gave Mr Weaver an unfaIr advantage. In support of its positIOn, the Union cites to OPSEU (1\.1ubarka A/am) and The Crown in Right of Ontario (Ministry of Community and Social Services) (1987), GSB No 0735/85 (Brandt); OLBEU (Cooke) and The Crown in Right of Ontario (Liquor Control Board of Ontario) (1991), GSB No 2472/87 (McCamus, Vice-ChaIr) It contends that it was fundamentally unfair for Mr Weaver to have the advantage of being reviewed by someone who was familiar with him when no such information was available regarding Mr Kai. When the panel chose not to inform itself of this information, it submits that the process was fatally flawed. The Union further contends that there were flaws Wltllln the intervIew itself It argues that the fact that there was a communications component to every question negatively impacted Mr Kai, both by giving undue weIght to the communicatIon skills component and by colouring the intervIewers' perceptions of lus technIcal knowledge and experience. For example, it points out that Mr KaI did not receive full marks for his experience since he did not sufficiently communicate It during the intervIew, but that same expenence was set out in hIS resume. Tlus, In Its VIew, demonstrates the problem of 22 , -, relying solely on the interview to the exclUSiOn of all other mformatIon available at the time. The Union also points out that the communIcations criteria evaluated by Mr Kai did not correspond to the critena set out in the Job competition but evaluated Mr KaI's eye contact and body language, whIch It argues demonstrates a cultural and ethmc bIas. It further contends that the ratmg of commUnIcation skills and mterpersonal skills was entirely subjective, and notes that even Mr Kullungal was unsure how Mr Suleman assessed the grievor The UnIon further argues that the panel SIgnificantly underrated the grievor's responses. It argues that some correct answers not given full marks while Mr Weaver was credited for mcorrect answers. The result, it contends, was that Mr Kai' s score should have been higher and Mr Weaver's should have been lower, makmg them relatively equal. The Union also challenges the "trivial pursuit" nature of the technical questions. In its view, those questions were strictly a memory test and did not evaluate the candIdates' potential to do the job In real life, it argues, an employee would be able to look up answers to questions regarding the Fire Code or Buildmg Code, not be expected to have the Codes memonzed. 23 The Umon further contends that the discrepancy regardmg the sconng of Mr Kai between Mr Suleman and Mr Kullungal, a difference of 17 1 %, cannot be tolerated in a fair assessment. It submits that the subjecti"9'e nature of the scoring, particularly in regard to commumcatlOns and interpersonal skills, was the basis of this discrepancy It argues that the lack of a methodical, standard measure makes it impossible to challenge lus evaluation after the fact. It further questioned how the interview questions could test mterpersonal skills, an area far better swted to asking the grievor's supervisors or revlewmg his performance evaluations. The Union submits that these flaws in the competition process demonstrate systemic discriminatIon by the Ministry It suggests that the Ministry's reliance on commumcation skills when English is not the gnevor's first language, and Its reliance on eye contact and nonverbal commumcation, was culturally bIased. It also submits that Mr Weaver's fire fighting and mspection experience in Ontario was given greater value than the grievor's superior experience from Hong Kong. For all these reasons, the Union subrruts that the competition was fatally flawed. It requests that Mr Kai be placed in the position with retroactive damages. Alternatively, it requests that the competition be fe-run. The Mimstry, at the outset of Its closmg argument, once again asked that the case be dismissed for delay In Its view, the gnevance that W"lS presented at the heanng - a 24 SectIon 4 3 gnevance - was far different than the ArtIcle A.I gnevance that had ongmally been filed. It submits that the delay and change In the grievance is a proper basis to diSmISS it in its entIrety In terms of discrimination, the Ministry argues that there was no evidence of any discnmination against Mr Kai, systemic or otherwIse. It points out that Mr KulIungal is himself a visible mInonty and that the Union presented no eVIdence that he was biased agamst Mr Kat. Nor, It argues, was there any basIs to question the bona fides of the I Ministry as suggested by the Union. The Research and Standards Branch, It notes, is well I represented in relatIOn to visible minorities and points out that the gnevor was permitted I to apply for the seconded position, even though, technically he was not an employee of the Office of the Fire Marshall, but on secondment from another Ministry The Ministry further argues that the interview properly assessed the relative qualifications of the two candidates. It submits that the panel drafted the questIons before It was known who had applied for the position and properly tested the candidates' techrucal knowledge, communication skills, expenence and mterpersonal skills - all of which were relevant to the job and properly tested through the questions posed. It notes that no extraneous factors were conSIdered nor was there an overemphaSIS on parts of the job In support of Its pOSItIon that asking technical questions where such knowledge is essential to the Job, the Ministry CItes OPSEU (Barbara Walker) and The Crown in Right 25 of Ontario (Ministry of Transportation and Communications) (1985), GSB No 514/84 (Verity, Vice-Chair) The MinIstry also contends that communication skills are fundamental to the position. It argues that the job Involves communIcating with the fire servIces community regarding fire safety Issues, an area In wruch commUnIcation misunderstandings could have fatal consequences. Therefore, It subffilts that the ability of the candidates to communicate their technical knowledge - as well as their interpersonal skills - was properly evaluated for trus posItion through the interview process. The Ministry further argues that evaluating the candidates commUnIcations as part of each question, rather than separately, was proper and a true reflection of their communications capabilities. The MinIstry further argued that even If there were flaws in the competition, those flaws must affect outcome of the competition before a violation may be found. In support of this positIon, the Ministry cites OPSEU (D Bent) and The Crown in Right of Ontario (Ministry of Transportation) (1989), GSB No 1733/86 (Fisher, Vice-Chair) and OPSEU (Esposito) and The Crown in Right of Ontario (Ministry of Housing) (1995), GSB No 2168/92 (Kaplan, Vice-Chair), and OPSEU (Desi/Bousquet) and The Crown in Right of Ontario (Ministry of Natural Resources) (1989), GSB (Sloan, Vice-Chair) The Ministry argues, under this approach, that even if the grievor's communIcation score was eliminated, Mr Weaver would still score SignIficantly better It argues that even if flaws eXIsted, It was the UnIon's onus to establish that the gnevor, in the absence of such flaws, 26 would have been found to be relatively equal to Mr Weaver It submits that the Union has failed to meet this onus. Finally, the Mimstry subnuts that Mr Weaver did not have an unfair advantage in the competition by virtue of his Imtial secondment with the Research and Standards Branch. It argues that all candidates bnng their expenence with them to a competition, and that such expenence IS not an unfair advantage. In support of thIS position, the Mimstry cites Re Desi/Bouquet, supra It further argues that there IS no evidence that panel downgraded Mr Kai 1 s experience. Finally, Ministry notes that no competition is perfect and that any flaw that might have occurred did not lead to wrong candidate being chosen. Accordingly, it submits that there has been no violation of the collective agreement and submits that the grievance should be dismissed. Decision A. Was the competition flawed? The case law clearly establishes that the employer, under this collective agreement, "must employ a process of decIsion-making designed to consider the relative qualifications and ability of the candldate[ s] In a competition. " Re Quinn, supra at p 7 To that end, sufficient relevant informatIOn must be obtained so that a thorough and proper companson 27 --- -- .. may be made. Re Quinn, supra, Re Eaton, supra at pp 13-14 As the Board of Arbitration in Quinn, supra, explained at p 10 The employer must design and utilize a selection process in Job competitions that is consistent With the purposes 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 candidates can be undertaken and the final selection made In this case, the Umon argues that there were a number of flaws In the manner in wluch the Ministry proceeded. Based on my reView of the eVIdence and the case law, I agree that some flaws did occur 0 The Ministry's primary flaw was its exclusive reliance on the interview In comparing the two candidates. It has been held that "where a selection panel relies mordmately on mtefV1ews It does so at its peril." Esposito, supra at 26 In some cases, this has led the Board to set aside the competition and ordered a re-run on the baSIS that by exclusively relYIng on the intemew, the employer depnves itself of other relevant sources of information which should be considered in assessing the candidates -- information such as the candidates' personnel files and supervIsory reports. Esposito, at 26 In this case, the Mimstry relied exclUSIVely on the interview to determine the two candIdates' expenence, technical knowledge, communicatIon and Interpersonal skills. Mr Kullungal only reviewed the gnevor's resume to determine Ifhe should be mterviewed. It 28 - --- was not used as a supplemental source of Information. There IS no evidence that Mr Suleman even saw the gnevor's resume or reviewed it. Nor is there any eVIdence that the grievor's personnel records were reviewed or that his supervisors were contacted for their assessment. The panel deprived itself of these sources of informatIOn and tlus constitutes a flaw In the process. See, e.g, Mubarka A lam, supra, N Poole, supra The Mirustry's failure to access these other sources of information is even more notable because Mr Kullungal had previously worked with Mr Weaver On one project during Mr Weaver's imtial secondment to the Research and Standards Branch, Mr Weaver reported to Mr Kullungal, and they had other interactions at work as well. In contrast, Mr Kullungal's prior contact with the grievor was quite limited. This increased the need for the panel to obtain information about the grievor from his supefVIsors and their failure to do so constitutes a flaw See, e.g, w.P.Eaton, supra. I cannot conclude, however, that undue weight was placed on the candidates' commurucation skills. There is no question, as the Union asserts, that the interview slgruficantly emphaSized the candidate's ability to communicate. Each answer was scored for communication. But the position in question required "excellent commurucatlOn skills" and the ability to commurucate complex, technical information to a Wide vanety of fire service customers, havmg a wide range of fire safety and prevention sophistication. It also required the indiVIdual to be a witness at court proceedmgs and to prepare Instructional matenals as well as conduct safety and mspectIon programs. Gwen the 29 nature of the position and the type of Information to be conveyed - fire safety and Inspection information - the ability to commurucate clearly can only be viewed as a legitimate requirement of the job Misunderstandings in this context because of a failure to clearly communicate could truly have devastating consequences. Consequently, I can find no flaw In the emphasIs that the panel placed on the candidates' commurucatIon skills. I also cannot accept the Uruon's argument that the Ministry's emphasIs on communication skills dlscnnunated agaInst the grievor whose first language is not English. Although the grievor has been in Canada for many years and, even In Hong Kong, conducted business in English, his ability to clearly communicate was rated significantly lower than Mr Weaver by both panelists, and the evidence at the hearing supported that conclusIOn. At tImes, during the heanng, Mr Kai was difficult to understand and his abilIty to commurucate clearly was decidedly less than Mr Weaver In tins regard, I note that the grievor, at the hearing, repeatedly stated that if he could be understood, that was sufficient. That would be true under a different type of collective agreement provIsIon known as a "threshold" clause, I.e., where the most seruor qualified applicant gets the job See Brown and Beatty, Canadian Labour Arbitration, SectIOn 63210 But Article 4.3 1 is not a "threshold" clause. It allows the employer to "give pnmary consIderation to qualIfications and ability to perform the required dutIes." Only "[ w ] here qualificatIOns and ability are relatively equal" does seruonty become the deCiding factor Thus, If one candIdate has demonstrably supenor commurucation skills, 30 , that factor is relevant under thIs provision. The fact that, in general, the grievor can be understood does not establish that he IS relatively equal to Mr Weaver I also find no flaw in the manner m which communication was evaluated - as part of each question rather than separately Mr Kullungal explaIned that he deCided to evaluate the candidates' commumcatIon skills In thIs manner because, In hIs view, It was a more realistic way to evaluate it SInce It more closely paralleled the questIOn and answer type of situation the successful candidate would regularly face on the Job I agree and conclude that for the pOSition in question here It was a reasonable way to assess the candidates' communication skills. Finally, I find the eVIdence msufficient to determme that gnevor was unfairly evaluated in tenns of his commumcation skills. While It IS true that the sconng was subJective, there bemg no clear standards, It cannot be detenruned that the gnevor was marked unfairly With the passage of so many years, neIther the grievor nor Mr KuIIungal could recall the grievor's answers to the internew questions. The panelists' notes of the mternews were cursory and cryptic. Consequently, without eVidence on thIs point, I cannot conclude that the grievor was scored unfairly He tnlght have been, but Without knowing what hIs answers were, it cannot be determined that he was Improperly or unfairly scored. 31 . The evidence also does not establish that the grievor's communication problems led the panelists' to undervalue rus technical knowledge scores. Agam, without knowing the content of the grievor's answers, it catinot be determined that the panelists unfairly scored him. LikeWIse, wIthout knowing Mr Weaver's answers, it cannot be determined that the panel overvalued his responses. The grievor's assertIons that the panel underscored his answers and overvalued those of Mr Weaver was not borne out in the evidence. The only questionable score for Mr Weaver was Mr Kullungal' s ratmg for question #19 for which Mr Weaver receIved no pomts for his technical answer but still receIved 2 points for commumcatlOn skills. In my View, those two pomts can only be conSIdered de minimis when the total number of possible points is 270 is considered. The only area where it may be determmed, with any certamty, that the grievor should have been gIven more points is in the area of experience. In that category, the panehsts (and the Board) had access to his resume which clearly sets out more experience than Mr Kai apparently conveyed during his mterview But while Mr Kai should have been more generously evaluated regarding his experience, there is no evidence that the panel overvalued Mr Weaver's experience. Mr Weaver had substantIal experience in all of the areas relevant to the Fire Safety Officer pOSItion in question. Consequently, at best, the grievor's experience should have been rated equIvalent to Mr Weaver, but not superior as the Union suggests. Finally, there is no evidence that the panelists' gave more weight to Mr Weaver's Ontano fire fighting and fire inspectIon experience than Mr Kai's expenence from Hong Kong. Rather, Mr Kat's lower score on experience appears to 32 . have resulted from his failing to fully communicate (through no fault of the panel) his expenence dunng the interview There is no eVIdence that Mr Kai was given InSUfficIent time to answer questions during the intervIew and the notes reveal a numbef of times in which he was asked addItIonal questions to eliCIt more information. In terms of the 25 questions asked during the interview, I find all of them t{) be relevant to the job I find no basis to fault the techrucal questions fOf their "trivial pursuit" nature. The questIOns posed tested the candIdates' baSIC workIng knowledge of the Fire Code, Building Code and other pertInent legislation and reflected the type of questIons that anse on the job The successful candidate was expected to do the job from the outset; it was not a trainee position. For that reason, the candidates' existing ability to do the job, not theIr potential to do It, was properly evaluated. The fact that Mr Kai had suffiCIent knowledge to know where to look up the answers in the various Codes does not mean that the Ministry could not properly test the candidates' existing knowledge. In Barbara Walker, supra, the interview Included questIOns "designed to elect the extent of [the candidates'] techmcaI knowledge." (Walker, supra at p ) The candidates were questioned about their knowledge of relevant legIslatIOn and regulations and many of the questions were dIfficult. The Board found that knowledge of the legislation was relevant to the job and that such questIons were properly asked at the IntervIew I reach the same conclUSIOn here. Particularly, as here, where the job involves 33 the communicatiOn of techmcal knowledge, asking technIcal questions during the mterview IS entirely appropriate. I I There was also no evidence that the questions were "tailor made" for Mr Weaver There was no eVIdence that he had previously performed the job m question or that he had an unfaIr advantage because of his prior work expenence ArtIcle 4 reqUIres the employer to consider each candidates' qualifications and ability and as set forth m Cooke, supra at p 9, "Each candIdate brings to the competition his or her own particular combinatIon of imtiatIve skill, education and work experience, and is entItled to have all of those aspects considered in the job competItIon." Accord, Desi/Bouquet, supra at 14-15 In terms of the mterpersonal skill questions, I find no flaw in the panelists attempting to evaluate this area through posing questions dealing with various scenarios. Interpersonal skills are clearly relevant to the job Tlus is an area, however, where information was available beyond the interview In Quinn, supra, the selection committee attempted to evaluate the supervisory and leadershIp capabilities of the candidates through questions at the interview In-the Board's view, this was "at best a very mdIrect deVice to determine the relative ability of the candidates to perform the supervIsory tasks listed on the job specification form." (Quinn, supra at p 12) Further, even if the questions could be Improved, the Board determmed that "they would still not be a complete substItute for the Information which should have been gathered as part of a reVIew by means of Personnel records and the opimons of the candIdates' supervisors." (Quinn, supra at p 34 . 13) In this case, although the questions pertaining to interpersonal skills were relevant and fair questions, the panel depnved Itself of other sources of information concerning Mr Kal's interpersonal skills. One final matter concerns the Vmon's argument that there was a lack of standards in the evaluation of the candidates. For the techmcal questions, there were sample answers, although credit was given for other answers as well. While Mr Kullungal was not able to state at the hearing what would constitute a perfect score for any given question, that appears to be the result of fading memory But there were no standards set for communication skills, interpersonal skills or experience. Although it would appear that standard sconng might be possible for experience, it is not clear how standard scoring could be achieved for commumcatlon skills or interpersonal skills. Consequently, even though assessment of a candidate's commumcation skills would appear to be somewhat subJective, in my VIew commumcation skills may be properly evaluated through an 10tefYlew An assessment of 1Oterpersonal skills, in contrast, while also subjectIve, would appear to benefit from input from a candidates' supefYlsors and pnor evaluations. Consequently, the eVIdence established that there were a number of flaws in the competitIOn. Although I find no flaw in connectIOn with the gnevor's evaluation 10 terms of commumcatlon skills or technIcal knowledge, he was underrated 10 terms of Ius experience and additional 1OformatlOn was available 10 regard to the category of 1Oterpersonal skills. In additIon, the Ministry relied exclusively on the intefYlew and did 35 .. . not contact the grievor's supervisors or review hIS personnel file. The next questIon IS whether, on the balance of probabilitIes, those flaws were material. B. Did the flaws affect the outcome of the competition? In a Job competition grievance, the InItial onus is on the Union to establish that the grievor was relatively equal in terms of qualifications and abilIty But if the competition was so fundamentally flawed as to prevent a proper assessment of that from being made, a re-run is usually reqUIred. In contrast, where the flaws are de minimis or could not, on the balance of probabilities, have affected the outcome, a VIolation of the collective agreement will not be found. In D Bent, supra, a two-part analysis was set forth. Specifically, the Board stated at p 12 [I]t seems clear that the onus is on the UnIon to establish not only that the defects eXisted but that had the defects not occurred, that the grievor would have got the pOSItion. .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. In that case, there were several SIgnIficant defects in the process mcluding consensus sconng, Improper welghmg of the scores, the failure to contact the candIdate's supervIsor and the mclusIon of an improper questIon. But the Board concluded that the UnIon dId 36 , not satIsfY its onus that had the defects not occurred the gnevor would be found to have been relatively equal. (D. Bent supra at p 13) The same two-part standard was used in Esposito, supra, the most recent case wluch was CIted to me. In that case, the Board issued a declaration that the competition was flawed but detemuned that "even if there were no flaws, the result, almost certainly, would have been the same." (Esposito, supra at p 25-26) Consequently, although the Board Issued a declaration that the competItion was flawed the Board did not order that the competition be re-run. In Esposito, the Ministry relied heavily on the interviews and test results in arriving at its final deciSIon. The gnevor's personnel file was not consulted nor were her supervIsors contacted. This, in the Board's view, was a flaw The Board determined, however, that if the grievor's personnel file had been reviewed and had there been reference checks, the panel would have learned that the grievor had some job knowledge whIch she had failed to commumcate during the intervIew, but "that a more through gathenng of Information would not, In all of the cIrcumstances of tlus case, have changed the result." (Esposito, supra p 27) Her performance evaluatIOn, "while good, was not sterlIng and there was eVidence that her communicatIOn skills were not unfatrly evaluated. " (Esposito, supra p 27) The Board concluded "Simply put, we are not satIsfied that recourse to the additIonal information would have made a difference partIcularly gIVen the importance of commumcatlOn and orgamzatlOnal skills to the 37 -- . posItion. " (Esposito, supra at p 28) In its view, the grievor (who scored 49 6) and the successful candidates (who scored 62.7, 659 and 67 1) were Simply too far apart, based on all of the evidence, "to believe that the additional information, had it been obtained, would have advanced the gnevor's apphcation." (Esposito, supra at p 28) There was also evidence in Esposito that some of the grievor's answers were improperly not given full credit. But there was no evidence, In the Board's View, of any overall unfaIrness m the grading process. Accordingly, the Board detemuned that "[ w ]hile the evidence does suggest that the gnevor ffilght have receIved some additIOnal points for a number of questions, we find that, on balance, her final grade accurately t reflects her performance in this competitIon, and that performance was by no stretch comparable to that of the three successful applicants." Under the circumstances, "reference checks and recourse to Interview files are hardly likely to have turned the tide." (Esposito, supra at p 29) ~ Other cases are to the same effect. In Barbara Walker, supra, no violatIOn was found when the Board determmed that it was unlikely that a review of personnel records or not markIng by consensus would have changed the result. LikeWise, in Desi/Bousquet, supra, no violation was found when the flaws were deemed de minimis In tlus case, the only area In wluch it has been established that the gnevor was underrated IS lus "expenence" ratmg. His resume demonstrates that the gnevor's 38 . . experience was equal, or nearly so, to that of Mr Weaver The evidence also establishes that additional information should have been sought concerning the grievor's mterpersonal skills. There IS no evidence, however, that the additional informatIon (from supervIsors or personnel records) might have assisted the grievor But even assunung it did and the gnevor should have been gIven full marks for interpersonal skills as well as the same rating for experience as Mr Weaver, the grievor would still fall more than 10 points behind Mr Weaver The eXIsting difference between the grievor's overall score and Mr Weaver's was 21 5 points (with Mr Kai at 67 8 and Mr Weaver at 893). IfMr Kai was given equal credit to Mr Weaver on experience, his averaged score would be 72.4 versus 89 3 for Mr Weaver If he was then given full marks for mterpersonal skills, his average score would be 785 versus 893 for Mr Weaver, a difference of more than ten points. While these changes make the Issue much closer, it is still not sufficient to estabhsh relative equality Further, although the grievor's personnel files were not reviewed and his supervisors were not contacted, there IS no eVIdence that the InformatIon, had It been obtaIned, would have assisted the grievor The only evidence concerrung the gnevor's pnor evaluatIons was a single question asked during examination-in-chief regarding whether he had been evaluated on communications during his employment WIth the government and, If so, had any problems been noted. Me Kal testIfied that he believed that there was "something related to that" on hIS evaluation and he "never had any adverse 39 , comment." Tills testimony, however standing alone as it does, does not establIsh that had the panel reviewed hIS prior evaluations and obtained supervIsory reports that It would have, on the balance of probabilities, resulted In his being relatively equal. To so conclude would only be pure speculation. Nor can It concluded, under the specific facts of thIS case, that the Ministry's failure to exaffilne Mr Kai' s personnel files or consult his supervisors precluded a faIr assessment on Mr Kai' s technical or commumcation skills. Given the extensive scope and relevance of the questions, the interview fatrly evaluated these two criteria. Where it failed to do so was in relation to the grievor's experience and interpersonal skills. But, as noted above, even when that error IS corrected favourably to Mr Kat, he does not meet the standard of relatively equality Further, the manner in which the competition was initiated does not raise questIons about the bona fides of the Mimstry's assessment. The cancellation of the second posting was explained by the error in the salary range and although the cancellatIOn of the first one was not explained, there is no eVidence that it was done to ensure that Mr Weaver applied. Mr Weaver was not inVIted to apply for the secondment positIon, but received a copy of the posting as, he beheved and there was no eVIdence to the contrary, dId the other Fire Safety Officers. Further, the gnevor was originally deemed ineligible for the secondment pOSItion (reasonably so being in a trainee secondment pOSition from another Mimstry and therefore not an employee of the Office of the Fire Marshall), but he was 40 --.- - lI! e. allowed to compete. Thus, the change was not used to exclude him from the competition. Further, the evidence showed that Mr Kullungal was hOplOg for more candidates than actually applied. In terms of the Union's assertion of systemic discrimination in violation of ArtIcle A.l of the collective agreement, I find the evidence fails to support that claim. The questions asked during the interview were related to the job; the ability to communicate is a vital part of the positiOn, there was no evidence of discrimination by Mr Kullungal, and the Research and Standards Branch is well-represented by visible minorities. Mr Kai himself was seconded to the Office of the Fire Marshall through an employment equity program which was voluntarily partIcipated in by the Fire Marshall's office and a number of employees who partIcipated in that program achieved permanent posItions there. Accordingly, although I conclude that there were flaws in tlus competition, and declare as much, I cannot find that the grievor was relatively equal to Mr Weaver, or that this IS an appropriate case, having found a flaw, to direct a re-run. For all the reasons set forth above, the gnevance is disrmssed. Dated this 23rdday of April, 1997 in Toronto, Ontario 41