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HomeMy WebLinkAbout1994-2034.Frisken.97-06-05 Decision ONTARIO EMPLOYtS DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT , REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1 Z8 TELEPHONEITELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILEITELECOPIE (41B) 32B-1396 GSB # 2034/94 OPSEU # 95C083-4 IN T.HE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Frisken) Grievor - and - the Crown in Right of Ontario (Ministry of Labour) Employer BEFORE O.V. Gray Vice-Chair FOR THE M.A Kuntz GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE P Toop EMPLOYER Corporate Staff Relations Officer Management Board Secretariat HEARING April 25, 1997 Decision Tills proceedmg concerns grievances filed by Terry FIsken allegmg that the employer breached ArtIcle 4 m connectlOn with two Job competitlOns in willch she partIcIpated m 1994 SubJect to some clarificatory testimony by the grIevor WIth respect to paragraph 6, the partIes agree on the following facts. AGREED STATEMENT OF FACTS IN THE MATTER OF THE GRIEVANCES OF T FRISKEN (GSB#2034194) 1 At the tune of her grIevance (flied September 28, 1994), the gnevor was an OA 9 AudIt Clerk with the St. Catharines DIstnct Office (Thorold) of the Ministry of Labour's Employment Practices Branch. 2. The grIevor had held thIS positIOn for about two months. Prior to thIS, she had held the position of an OA 9 Telephone Advisor m a Toronto office of the MinIstry of Labour's Employment Practices Branch. 3 In the summer of 1994, the gnevor apphed and was mtervIewed for two pOSItIOns' . CompetitIOn #031.9405 for two temporary assignments as an Employment Standards Officer 2 in either the Niagara office (one year) or the Hamilton office (six months). . Competition #LB 115.9312 for a full time classIfied Employment Standards Officer 1 positIOn in the Hamilton office. 4. The grIevor was unsuccessful in eIther competItIOn. The successful candidates were Lmda Taafe for the ESO 1, and Richard Joyce and Berme Marcoux for the ESO 2. 5 Shortly thereafter, the gnevor was offered and accepted a temporary aSSIgnment of three months duratIOn for an ESO 1 pOSItion. 6. The gnevor termmated this temporary assignment before Its end date to take a leave of absence to work as a ConstItuency AsSIstant to DaVid Cnstopherson, MPP for Hamilton South, which was to run to the sprmg of 1996. For at least a portion of thIs leave, the grIevor indIcated she dId not WIsh to contmue to pay the employer portIOn of her penSIOn contributIOns. 7 The gnevor was granted extenSIOn of her leave, however by letter of May 23, 1996, she was mformed that her former positIOn was to be declared surplus. 8. Mter receIpt of the surplus notIce, the grIevor exercIsed her optIOn to reSIgn from the OPB m exchange for pay m heu. As a consequence, she 2 - renounced recall rIghts she otherwise would have held under the collective agreement. 9 The grIevor contmues to work m DavId ChrIstopherson's constItuency office and IS no longer employed in the OPS. 10 Mr Joyce, the successful candIdate for the NIagara ESO 2 posItion, and who had orIginally been seIved third party notice, resigned from the MinIStry m the spring of 1996. 11. Ms. Sawchuk, who competed m the ESO 1 competitIOn, has been surplused and is no longer employed In the OPS. She was given third party notIce of this hearrng. 12. Ms. Taafe, the successful candIdate for the ESO 1 position, was served third party notIce by regIstered mail dated April 26, 1996, but dId not attend the hearing scheduled for May 30, 1996. She also received third party notice for today's hearrng. The Grievor seeks an order directing the employer to appomt her to the perma- nent ESOl posItion and compensate her for its faIlure to appomt her to that po- sition when the competitIOn for It concluded m 1994 In the alternative, she seeks compensatIOn only for the failure to appomt her to the temporary ES02 position, to be calculated on the premise that she would have occupIed the POSI- tion for as long as Mr Joyce dId. The partIes agreed that this heanng would not address, and that I would remam seised of, any issue as to the calculatIOn of the amount of any compensatIOn for which the employer may be found hable, m- cludmg any issue about mitigatIOn. They speCIfically agreed, however, that any issue as to what Job the grIevor would have been in (had there not been a breach) at any pomt in the period for wruch compensatIOn IS claImed was to be addressed m trus heanng Notice Issue Agamst the background of those agreed facts, the employer sought an ad- Journment on the basis that the notice It had given to Ms. Sawchuk of the hear mg m trus matter had only been receIved by her on the trurd day prIOr to the hearmg. The employer's pOSItIOn was that It was arguable that Ms Sawchuk ought to have been the successful candidate m the competitIOn for the ESO 1 pOSItIOn. - 3 - Although Ms. Sawchuk had not grIeved the result of that competItion, It was the employer's posItIOn that she had an mterest m proceedmgs arIsmg out of Ms. FrIsken's grIevance because one possible result was a re-run competitIOn in wluch Ms. Sawchuk mIght be permItted to participate. Employer counsel saId he understood that Ms. Sawchuk she had received notIce of the hearmg three bUSI- ness days prIor to ItS date. She had spoken to him by telephone thereafter, and had told lum that she had prevIOusly arranged to take her son to an orthodontist appomtment on the day of the hearing He adVIsed that she had not indicated to hIm that she wished the hearmg adjourned to another date. He nevertheless as- serted that Ms. Sawchuk mIght wIsh to make representations about her "right to be appomted." He conceded, however, that If she were to now file a grIevance as- sertmg that rIght the employer would object to It as untimely He also asserted that she might wish to make representatIOns about her rIght to particIpate m a rerun competItIOn. He dId not assert that she had expressed either of these wIshes to hIm. The union's primary pOSItion was that as Ms. Sawchuk had not grIeved the result of the competitIOn m a timely fashion, she dId not have an mterest in these proceedmgs that would entitle her to party standmg and, accordmgly, was not entitled to notice. Apart from the matter of Mrs. Sawchuk's rIght to notIce, the uruon submItted that the notice given was adequate. It dId not appear to me that any eX'tstmg nght of Ms Sawchuk under the collective agreement could be dIrectly and adversely affected by any outcome of thIS gnevance. The mere possibilIty of her benefitmg from another's gnevance dId not gIve her the rIght to notice and the opporturuty to partICIpate m the arbI- tratIOn of that grIevance as a party mdependent of the union. In any event, and wIthout condonmg the employer's havmg failed to gIve notice earlIer, It seemed to me that two clear days' notice should be conSIdered adequate notIce of hearmg m the absence of eVIdence to the contrary I concluded that the CIrcumstances dId not warrant an adjournment at the request of the employer m order to gIve more notIce to someone who, havmg had two clear day's notice, had not requested an 4- adjournment or otherwIse commurucated an mterest m partlclpatmg m the pro- ceedmgs. The Grievor's Testimony With reference to paragraph 6 of the agreed statement of facts, the gnevor testIfied that she arranged a 12 month leave of absence when she was offered temporary work as a SpecIal Assistant for Mr ChrIstopherson, who was then SolIcitor General. Mter she began workmg for hIm she learned that she would be treated as bemg on secondment to hIs mlrustry, rather than on unpaId leave. That secondment contmued until June 8, 1995, when the present government was elected. Thereafter, the grIevor spent the balance of her prevIously author- Ized leave, plus an extenSIOn, workmg outsIde the CIVIl servIce as programme co- ordmator in a traming program m HamIlton. At or before the end of her antiCI- pated tenure at that program, she was offered and took the opporturuty to work as Mr ChrIstopherson's constitutency assistant on a temporary baSIS wlnle the incumbent aSSIstant was on what the grIevor described as a secondment to the CIty of HamIlton. The grievor testIfied that the outcome of the competitIOns m issue gave her the ImpreSSIOn that her future in the Mirustry was restricted. It was m that context that she took up the developmental opportunIties for whIch she took leave of absence. She acknowledged havmg given up recall rIghts for mcreased separatIOn pay after recelvmg the surplus notIce m March 1996 She saId she understood she was gIVIng up the right to be recalled to her GAG 9 home POSI- tion of AudIt Clerk, not her rIght to seek through these proceedmgs the pOSItIOns that are the subject of grIevances she had filed m 1994 In cross-exammatIOn she agreed that she would not have been at work durmg the strIke February 26 to March 31, 1996 - 5 - The Competition For The Temporary ESO 2 Position Facts Durmg pre-hearmg dIsclosure, the employer described the selectIOn proc- ess for the temporary ESO 2 posItIon m Issue as follows (mItIals have been sub- stituted for names not mentioned m the Statement of Facts) Selection Process. All applicants were intervIewed. Questions were developed based on the quahfications listed in the ad. The panel discussed method of scoring (i.e. one mark per valId pomt or two marks, etc.) pnor to the start of the interviews. Scormg was done mdIvIdually by each panel member rather than by consensus. Scares were compared at the end of all the mtervIews to determine whether there were any major dIscrepancIes. No dIscrepancies were noted. Scores were not adjusted. A bargammg unit representative observed the intervIew process, mcludmg the scormg, to ensure fairness and equity Rankmg & Scormg of ApplIcants by Semonty Date. May 20, 1980 54.3 K.P August 26, 1991 56 D H. March 25, 1992 615 Terry Fnsken (gnevor) November 2, 1992 58.6 K.H. Contract No semonty 55 1 R. S. Contract No semonty 70 RIchard Joyce (successful candIdate) The employer also provIded this ratIOnale for the selectIOn ofMr Joyce. RatIOnale for DeCISIOn. Although there IS only a 9 5% difference between the gnevor and the successful candIdate, there was consIdered not to be relatIve equalIty because the successful candIdate had two and a half years prior expenence m the pOSItIOn bemg hired. The gnevor had never done the Job and had m fact not even had expenence as an ESA1 - 6 I was told that the marks shown were out of a possible 90 The reference to a 9 5% difference in the rationale offered during pre-hearmg dIsclosure is to the dIfference of 8 5 marks expressed as a percentage of the total number of marks possible. In addItion to a document setting out this pre-hearing dISclosure, the par- ties also put before me the resumes originally filed by the grievor and the suc- cessful candIdate m connectIOn with trus competitIOn. Mr Joyce's resume reveals that m addItion to havmg worked m the posItIon for 2% years, he had prevIOusly earned a degree m law in Ireland and been admItted and practiced as a solIcItor there. Argument While it challenges the rationale for the decIsIOn, the umon accepts that questions asked during intervIews were appropriate, that the markmg of an- swers to them was faIr and that the marks for each answer were appropriately weIghed m arriving at the total scores. The UnIon argues that the grIevor's greater semorIty should have tipped the scales m her favour under Article 43 1 of the collective agreement m force at the time of the competitIon, because the qualIficatIOns and abIlIty of the grIevor and the successful candIdate were rela- tively equal. ArtICle 4 3 1 proVIded that. 4.3.1 In fIlling a vacancy, the Employer shall gIVe pnmary conSIderatIon to quahfications and ability to perform the required dutIes. Where qualificatIOns and ability are relatively equal, length of continuous servIce shall be the deCIdIng factor The umon submits that when the dIfference In marks on a properly conducted mtervlew IS less than 10% there IS not the substantIal dIfference necessary to show that the candIdates are no relatively equal. It also submIts that Mr Joyce's experience m the pOSItIOn would have aSSIsted rum m answermg appropriate m- tervIew questIOns, and that It IS mapproprIate to gIve weIght to that experience mdependent of the outcome of the mtervIew - 7 - The employer argues that If expressed as a percentage of the hIgher mark, the dIfference between the gnevor's and Mr Joyce's marks was greater than 10% In any event, the employer says, it was entitled to look beyond the inter- View scores to other indIcators of an applIcant's qualIfications and abIlity, m- cludmg relevant mformatIOn m hIS resume and the fact of hIS havmg performed the subject Job for a perIOd of time. Decision The Issue here is whether the gnevor and the successful candidate were "relatively equal" in quahfications and abilIty It is well settled that "relatively equal" does not mean exactly equal. Unless two candidates have a "substantial and demonstrable difference m qualifications and abilIties," they are "relatively equal" see, e.g, Va~llancourt, 1620/87 (Wilson) There IS no speCIfic percentage test by wluch one determmes whether the "substantial and demonstrable dIffer- ence" threshold has been crossed. Worsley, 347/81 (Draper) Expressmg score dif- ferences in percentage terms can be a helpful part of the assessment process, but not a conclusIve one. On the questIOn whether a difference m scores that meas- ure qualIficatIOns and abilIty should be expressed as a percentage of a "perfect" score or as a percentage of one of the actual scores bemg compared, I agree WIth the conclusion m Nixon, 2418/87 (FIsher) that the latter approach YIelds a more meamngful result. In Nixon, supra, the board was CrItical of the employer's having faIled to go beyond mtervIew scores and conSider an applIcant's performance of the sub- Ject Job durmg a secondment. In my View the employer was not only entItled but oblIged to look beyond scores of the applIcants' mterview performance Havmg regard to the mtervIew scores and the other relevant mformatIOn then before the employer, I am not persuaded that the It erred m concludmg that the gnevor and Mr Joyce were not relatIvely equal. Accordmgly, the gnevance WIth respect to that competitIOn IS dIsmIssed. - 8 - The Competition For The ESO 1 Position Facts The employer intervIewed and scored the qualificatIOns and abIlIties of the 13 candIdates for the ESO 1 posItIon. The unIon accepts that questIons ask-ed during the intervIews were appropriate, that the marlung of answers to them was faIr and that the marks for each questIon were appropriately weIghed in ar- nvmg at the total scores. The employee awarded the Job to L. Taafe, who had the greatest semonty of all of the candidates, but not the lughest score. SlX other candIdates had lugher scores, the gnevor got the lughest score The scores and semority dates of Ms. Taafe and the SIX higher sconng candIdates were as fol- lows. Name Score Contmuous ServIce Date T Frisken 213 March 25, 1992 M. Sawchuk 198 February 1, 1983 D H. 197 August 26, 1991 C H. 196 Unclassified R. S. 196 U nclasstfied B M. 195 May 28, 1991 L. Taafe 184 December 11, 1972 Havmg regard to the dIfference in their scores, the employer now concedes that Ms. Taafe and the gnevor were not relatIvely equal. The parties are m dispute about what follows from that. Argument The unIon submIts that the proper remedy for the employer's breach of ArtIcle 43 1 m these CIrcumstances 18 a dIrectIOn that the employer put the gnevor m the posItIOn and compensate her for any loss she may have suffered as a result of Its not havmg put her m that pOSItIOn at the conclusIOn of the compe- tItIOn. The umon acknowledges that m order to restore her to the pOSItIOn she would have been m had she been awarded the Job ImtIally, It WIll be necessary for her to repay the termmatIOn payments she receIved when she responded to - 9 - the employer's surplus notIce by execismg her option to resIgn then. The union says that any questIOn whether the Job ought to have been offered to Ms Saw- chuk is moot because she forfeIted any right she had to the posItIOn in question by falling to grieve the result of the competition. The employer demes that the grIevor IS entitled to any remedy It submIts that she can have no remedy because she suffered no loss - it was Ms. Sawchuk to whom it ought to have offered the job, not the grIevor In the alternative, the employer says that the remedy sought cannot and should not be awarded, that the only appropriate remedy would be to rerun the competition with the origmal competitors. It submits that placmg the grievor m the pOSItion would mvolve reappomtmg her to the CIvIl servIce. It says the Board has no JurisdIctIOn to do that because section 8 of the Publ~c Servwe Act provides that only the employer can appoint someone to the CIVIl service. The employer further argues that placmg the gnevor m an ESO 1 positIOn and directing the payment of compensation on the premise that she would have occupied such a pOSItIOn during a past perIOd amounts to changing her classificatIOn, somethmg the Board IS WIthout JurisdICtIOn to do by virtue of section 52 of the Crown Em- ployees Collective Bargammg Act. The employer further argues that the gnevor's haVing resigned precludes her from bemg reappomted to the CIVIl serv- ice as a remedy m these proceedmgs. The employer acknowledges that m Zuibryck~, 100/76 (PrItchard), the Board remedIed a flawed competItIOn by proVIdmg for the appomtment of the grIevor to the subject pOSItion, and that the DIVISIOnal Court found that the Board had JUrISdIctIOn to do that. R. v Ontano Pubhc Sermce Employees Unwn et al. (1982), 35 O.R. (2d) 670 It argues, however, that that result flowed from the dlstmctIve statutory mandate of the Board under the then Crown Employees Collectwe Bargammg Act. It submIts that subsequent changes m the Board's constitutive legIslatIOn have elImmated relevant dlstmctIOns between the Board's mandate and the mandates of arbItrators m proceedmgs under the La- bour Relatwns Act Accordmgly, It says, the deciSIOn of the Court of Appeal m Re - 10 - Falconbndge Nickel Mines Ltd. and Umted Steelworkers of Amen-ca, [1973] 1 O.R. 136 now bears applIcatIOn to proceedings of thIS kmd It argues that that decIsIon stands for the proposition that an arbitratIOn board is without jUrisdic- tion to award a Job to an unsuccessful applIcant, that the proper and only rem- edy for a flawed Job competitIOn IS a rerun of the competitIOn. With respect to the claIm for compensation, the employer argues that the grIevor's employment hIstory followmg the appointment supports an mference that she would not have remained m the CIvIl seI'Vlce throughout the period for whIch compensation is claimed. Decision The grIevor had the top score in this competitIOn. The collective agree- ment required that the employer determine whether any employee WIth greater semorIty was ((relatively equal" to the grievor It admIts, m retrospect, that Ms. Taafe, the person to whom it awarded the posItion, was not relatively equal. The union does not dIspute that Ms. Sawchuk was relatively equal to the grIevor It follows that the employer ought to have offered her the Job If she had then turned It down (as ((WInners" of Job competitions sometimes do), then it ought to have offered the Job to the next most senior applicant who was relatively equal to and more semor than the gnevor It may be that offers would have to have been made to and rejected by Ms. Sawchuk, D H. and B M. before the employer would have been obbged to offer the pOSItion to the gnevor Those others dId not assert theIr prior rights, however - they dId not gneve. The questIOn thIs situation raIses IS not new It was the very SItuatIOn faced by the Board In Zwbryckz., supra. There, the Board found that the em- ployer could not raIse the eXIstence of other relatively equal and more semor un- successful applIcants as an obJectIOn to an unsuccessful applIcant's gnevance If those other applIcants had not grIeved Turnmg to the partIcular facts of the case before us, it must be remembered that the earlIer panel of the Board found that the gnevor possessed ability and skills at least equal to all of the candIdates m each competltlOn. In the . 11 - result, he should have prevailed over (the successful apphcants], each of whom had less semority than the grIevor There were other candIdates more semor than the grIevor who, on the Board's [mdings, were relatively equal in ability and skills and who therefore would have been entItled to prevail over the grIevor If they had grIeved and If the same [mdings of fact had been made. However, they chd not grieve and have not grIeved to this date. They therefore have forfeIted any claIm they may otherwise have had to the positions. It IS widely accepted in labour relations that those with a grievance should raIse the matter in a timely fashion so as to allow the parties to the collectIve agreement to assess the SItuation and respond appropriately In particular, If the other canchdates had grieved, the grlevor's case and the employer's case may well have been chfferent. However, by not grIeving the other canchdates are now foreclosed from clarmmg (or havmg clarmed for them by the employer) any rights m thIS arbItration. That aspect of the deCIsion dId not depend on any peculIanty of the statute from whIch the Board then denved Its JurisdIction. It IS not suggested that any subse- quent deCIsion of the Board has found fault WIth it. Indeed, the Board took the same approach in Harns-Bernard, 97/94 (Roberts) While I am not bound by those deCISIOns, It would be contrary to good labour relatIOns polIcy for me to ref- use to follow them unless I had a clear conviction that they were wrong I am not persuaded that they are wrong I conclude that the gnevor IS entitled to a remedy with respect to the em- ployer's breach of artIcle 4.3 1 of the collective agreement. The next question IS whether proVIdmg for her employment m the subJect pOSItIOn IS withIn the Board's JUriSdIctIOn. SectIOn 2 of the current Crown Employees Collect we Bargammg Act, S 0 1993, c. 38 as amended ("CECBA") prOVIdes that the Labour Relatwns Act, 1995 ("the LRA") IS deemed to form part of CECBA, with the modIficatIOns and excep tIOns set out m CECBA. SectIOn 7 provIdes, m part, as follows 7 (1) The operation of section 48 of the Labour Relatwns Act, 1995 IS subject to the modIficatIOns set out m thIS sectIOn. (2) SubsectIOns 48(1) to (6) of the Labour Relatwns Act, 1995 do not form part of thIS act. (3) Every collectIve agreement relating to Crown employees shall be deemed to prOVIde for the final and bmdIng settlement by arbitratIOn by the Grievance Settlement Board, WIthout stoppage of work, of all chfferences between the partIes arismg from the mterpretatIOn, apphcatIOn - 12 - admmIStration or alleged violatIOn of the agreement, mcludmg any questIOn as to whether a matter IS arbitrable. Except for the addItIOn of the words "by the GrIevance Settlement Board", sub- sectIon 7(3) of CECBA defines the deemed prOVISIOn for arbItratIOn m the same terms as subsectIOn 48( 1) of the LRA. Apart from the argument based on the Falconbndge deCISIOn, which I address later, there IS no suggestIOn that an arbi- trator under the LRA would be WIthout JurIsdIctIOn to prOVIde for a grIevor's em- ployment m a particular positIOn as part of a remedy m approprIate CIrcum- stances where, as here, the collectIve agreement does not expressly restrIct that JUrIsdictIOn. SubsectIOns 7(4), (5) and (6) of CECBA restrict the Board's junsdic- tIon to do so m certam CIrcumstances, but those CIrcumstances do not eXIst here. SubsectIOn 8 1 of the PublLC ServLCe Act, R. S 0 1990, c. P 47, as amended (the "PSA") proVIdes, m part, that 8.1 (1) An mmvIdual is not considered to be a CIvil seIVant unless he or she has been expressly appointed as such by the CommISsIon or by the Lieutenant Governor in Council on the certIficate of the CommiSSIOn. (2) An mdividual is not considered to be a pubhc seIVant unless he or she has been expressly appomted as such by the Lieutenant Governor in Council, the CommIssion, a mmIster or a designee of a mmISter (3) An mdivIdual who IS employed in the seIVice of the Crown is not conSIdered to be a Crown employee unless the individual has been expressly appointed as such by the Lieutenant Governor in Council, the CommIsSIon or a minIster The object of these provisIOns IS made clear by subsectIOn (10) (10) In the absence of an express appomtment of an mmvIdual as a CIVil seIVant, pubhc seIVant or Crown employee, the mmvIdual's appomtment shall not be mferred solely from the CIrcumstances ofhls or her employment. Nothmg m these prOVISIOns precludes tills Board from reqUlrmg that the em- ployer appomt a grIevor to a pOSItIOn in the CIVIl servIce where that is the appro- prIate remedy for breach of the collectIve agreement, nor from reqUlrmg that the employer compensate a grIevor for losses flowmg from a breach of an oblIgatIOn to appomt. - 13 - The prOVISIOns of CECBA whIch address matters of classIfication are these. 51 (1) An order of the Gnevance Settlement Board shall not reqUITe the creatIOn of a new classIficatIOn of employees or the alteration of an eXIsting classIficatIOn. (2) An order of the Gnevance Settlement Board shall not reqUITe a change to be made m the classIfication of an employee. 52.(1) A proviSIOn m an agreement entered into that provides for the determmation by an arbItrator, a board of arbItration or another tribunal of any of the followmg matters IS VOId: 1. A classIficatIon system of employees, mcluding creating a new classIfication system or amendmg an existing classification system. 2. The classIficatIOn of an employee, mcludmg changmg an employee's classIfica tIOn. In thIS context, changmg an employee's classIfication means treatmg the em- ployee's assigned duties and responsibIlitIes as brmgmg the employee's pOSItIon withm a claSSIficatIOn other than the one assIgned by the employer The em- ployer has classIfied the posItion sought by the grievor as ESO 1. I am not asked to change that claSSIficatIOn. These provIsions preclude the Board from requir- mg that the employer reclassIfy a posItion. They do not preclude the Board from reqUIrmg that the employer put a grIevor In a partIcular pOSItIOn. In Falconbndge, supra, article 12 11 of the applIcable collective agree- ment provIded that m matter of promotIOn seniority was to govern "When In the Judgment of the Company, whIch shall not be exercised m an unfaIr and unrea- sonable manner" other relevant factors were "to all mtents and purposes equal" By a maJority, the arbItratIOn board found that the employer breached that pro- VISIOn by not makIng suffiCIent mqUIrIeS about the grIevor's experience The grIevor was one of several applIcants. The arbItratIOn board found that as be- tween the grIevor and the successful applIcant, all other relevant factors were to all mtents and purposes equal. Havmg regard to the applIcant's greater semor- Ity, It dIrected that the grIevor be placed m the Job On JudiCial reVIew the employer argued that the maJority of the board had "Improperly assumed the functIOn of management by awardmg the vacancy to - 14 - the gnevor mstead of referrmg the matter back to the company for reconsIdera- tion wIth appropnate dIrectIons." The court agreed, saymg On the questIon of whether the board acted without JurisdIction m ordermg the company to place Cowen in the vacant positIon, it IS unnecessary to decide what the powers of the board would be If there had been only two applicants for the vacant pOSItIon - Srmard and Cowen. In such a case the questIon IS academIc. In fact, there was a third applicant and m my opmion under arts. 3.01, 12. 10 and 12.11 the appellant has a clear management nght, If not the duty, to make a chOIce between Cowen and the third apphcant m accordance WIth the terms of the agreement. By its award, m my opimon, the board usurped the functIOn of management I have mentIOned and exercIsed a power it did not have Port Arthur Shtpbuildmg Co. v. Arthurs et at., [1969] S C.R. 85, 70 D L.R. (2d) 693 It does not appear to have been argued that the faIlure of the thIrd applIcant to grieve made tb.1.s Issue as academIC as It would have been had there been only two apphcants. On JudICIal reVIew of the Board's deCISIOn in Zu~bryck~, Mr JustIce Lmden (Madam JustIce Van Camp concurnng) noted (at page 677) that the deCISIOn m Falconbndge depended on the partIcular facts and collectIve agreement proVI- SIOns m Issue, and did not prescribe a rule of umversal apphcation. Falconbndge Nwkel, however, did not hold that a Board can never many circumstances grant a job to an unsuccessful applicant without exceeding ItS JurisdictIOn. It held that, in the circumstances of that case, m the hght of the collectIve agreement be.tween the parties and the relevant legISlation, the Board erred m so domg. The propnety of a remedy depends on the circumstances of the case, the collectIVe agreement and the applicable legislatIOn. In approprIate cIrcumstances, even WIthout express authOrIZatIOn, a Board, actmg pursuant to its general power to fmally deCIde a matter, may award a pOSItIOn to an unsuccessful apphcant. We note that arbItrators have done thIS ill the past m SItuatIOns where the results of are. run would be a foregone conclUSIOn, where it would be unfair to remIt the matter and m other speCIal situatIOns. (See cases collected m Brown and Beatty, CanadIan Labour ArbitratIOn (1977), at pp. 274-75) Although the dlssentmg JustIce would have applIed Falconbndge, It IS noteworthy that at the tIme relevant to the Board's deCISIon m Zu~bryck~, the second sentence of what has earlIer been quoted as Article 4 3 1 saId "Where, m the opmwn of the employer, quahficatIOns and abIhty are relatively equal, length of contmuous service shall be a conSIderatIOn." The emphasIsed words had been - 15 - removed before the events 10 questIOn here. Some arbItrators have saId that If the applicable collectIve agreement does not specIfically provIde that the assess- ment of an employee's skIll and abIlity IS to be based on management's judgment or opmion, then Falconbndge does not apply' see, e.g , Re St. Cathannes General Hosp~tal and Serv~ce Employees Umon, Local 204 (1975), 10 L.A.C (2d) 258 (Ad- ams) at 265 In any event, I do not need to deCIde in tms case whether 10 the present state of the partIes' collective agreement and the Board's constitutive statute the Board may substitute and act on Its own Judgment of employees' relative quahfi- catIOns and abilities in the course of fasmoning a remedy for a flawed competi- tion. The most substantial dIstinction between thIs case and the one WIth which the Court of Appeal dealt in Falconbridge IS that I have not been called upon to substItute my Judgment for the employer's with respect to the relative qualifica- tIOns and abilities of the applicants ThIS is not a flawed competitIOn case. The union does not challenge the scores that the employer assIgned to the candIdates' relative qualificatIOns and abIlities. It only challenges the employer's faIlure to act on those scores as the collective agreement reqUIred. In those CIrcumstances, at least, the mJunction m Falconbndge agaInst usurpmg a functIOn reserved to management clearly does not apply The grIevor was demed a pOSItion to wmch, on the Board's established JU- risprudence, she clearly became entitled when other relatIvely equal and more semor applIcants failed to grieve. I am not persuaded that anytmng the way grIevor managed the aftermath of that wrongdomg should be the baSIS for de- nymg her a remedy that puts her 10 the pOSItion she was wrongfully denied In the CIrcumstances, and haVing regard to her testimony, her career chOIces prior to receIvmg notice that her home pOSItion had become surplus do not support a findmg that she would have declmed the ESO 1 pOSItion If It had been offered at the proper time, nor that she would thereafter have resIgned voluntarily The sIgmficance of her havmg resIgned 10 the face of the surplus notice must be as- sessed m light of the alternatIves she had apart from thIS grievance I accept her - 16 - eVIdence that she did not Intend the resIgnatIOn to be a waIver of her right to an appropriate remedy In the grievance proceedmgs that she had InItiated nearly two years earher There is no eVIdence that she dId anythIng that amounted to an express waIver, and I am not persuaded that her reSIgnatIOn amounts In law to an Imphed waIver of that right. As I have noted, the partIes specifically agreed that any Issue as to what Job the grIevor would have been in (had there not been a breach) at any pOInt In the period for wruch compensation IS claImed was to be addressed In thIS hear- ing The thrust of the grievor's testimony was that If she had been awarded the ESO 1 position as her home posItion, she would have remaIned in it. It is implICIt In paragraph 12 of the agreed facts that Ms Taafe was still In that posItion, and that It therefore continued to eXIst, In late April. There was no eVIdence that It was ehmInated thereafter There IS also no eVIdence that If the grIevor had been awarded the posItion she would since have been bumped out of It by a more sen- IOr employee, a matter on whIch the employer bore the burden of proof If It in- tended to raIse It. Award I am therefore persuaded that the grIevor IS entItled to an order directIng that the employer appoInt her to the ESO 1 pOSItIOn In question, and compensate her for any loss she may have sustaIned as a .result of ItS faIlure to appoInt her to that pOSItIOn when It first became oblIged to do so I so order If the grIevor ac- cepts the appoIntment, she will hereby be oblIged to restore to the employer the termInatIOn payments she receIved from It. Her payment WIll not be due before the amount of compensatIOn payable by the employer has been settled. If the amount she IS obhged to pay the employer exceeds the amount of compensatIOn It IS oblIged to pay her, the dIfference may be repaId on reasonable terms by pay- roll deductIon. I remam seIsed WIth any Issue arIsIng out of these dIrectIOns that the partIes prove unable to settle themselves IncludIng, WIthout lImItatIOn, the amount of compensatIon owed by the employer, the amount owed by the grIevor - 17 - to the employer, the terms on whIch any net balance IS to be paId and the extent to whIch interest IS to be mcluded in any of these calculations Dated at Toronto tlus 5th day of June, 1997