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HomeMy WebLinkAbout1995-0577BHATTI98_06_08 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-139<5 GSB #0577/95 OPSEU #95D017 IN THE MA TIER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETILEMENT BOARD pETWEEN OPSEU (Bhatti) Grievor - and - The Crown in Right of Ontario (Mirustry of Housmg) Employer BEFORE Owen V Gray Vice-ChaIr FOR THE E. Holmes UNION Counsel Ryder Wright Blair & Doyle Barristers & SoliCItors FOR THE D Holmes EMPLOYER Counsel, Legal Services Branch Management Board Secretariat HEARING January 27, April 23 and 24 May 12, September 10 and 11 and November 26, 1997 DECISION [1] ThIs gnevance concerns a Job competItIOn conducted m early 1995 A set tlement of thIs gnevor's three pnor gnevances provIded that the employer would post a vacancy m the classIfied servIce and the gnevor would have the opportu- mty to compete for the vacancy The gnevor was not the successful candIdate m the ensumg competItIOn. He alleges that the mdlvlduals mvolved m conductmg the competItIOn dlscrlmmated agamst hIm because of rus race and place of ongm and that the competItIOn was not conducted m accordance wIth ArtIcle 4 of the collectIve agreement. Background [2] The gnevor started workmg for the government m 1986 as a temporary clencal worker He began workmg m the North York office of the Mmlstry of Housmg's Rent Control Program m August 1988 After a few weeks as a data en try clerk there, he entered mto what became a senes of unclaSSIfied contracts as an office support clerk m a posItIOn mvolvmg the handhng of mall. In the sum mer of 1992, the Mmlstry of Housmg posted a vacancy for a permanent Office Support Clerk posItIOn m that office The gnevor and others apphed The compe- tItIOn for that Job was put on hold m August 1992, pendmg clearance of the sur- plus hst. [3] In May 1993, a surplus classIfied employee was aSSIgned to the Office Support Clerk posItIOn that had ongmally been the subJect of the Job postmg m 1992 By letter date June 1, 1993 the gnevor was mformed that the competItIOn had been cancelled. He filed a gnevance wIth respect to the cancellatIOn. - 2 - [4] ElIzabeth Mason began workmg as the manager m charge of the North York office m Mayor June of 1993 The grlevor testified that the day she started she mtroduced herself to others m the office, but not to hIm. When he saId "hello" to her the next day she dId not reply He was mstructed by hIS supervIsor that he would not handle filmg for Ms Mason, as he had done for prevIOUS man- agers When Ms Mason dId speak to hIm, he saId, It was to mform hIm that hIS eXlstmg contract of employment as an unclassIfied office support clerk m the North York office was bemg cancelled or would not be renewed He testified that she offered rum five weeks notice, then changed that to eIght weeks, then demed havmg offered eIght weeks once a umon representative became mvolved He filed a further grievance wIth respect to what he alleged was dISCrImmatory treat- ment on the basIs of hIS colour and natIOnal orlgm. He testified that there was further dISCrImmatory conduct. He claIms that on one occaSIOn he was gIven an errand to run out of the office at a time for WhICh an office celebratIOn was planned On another occaSIOn, he says, Ms Mason mformed everyone but hIm that they would have a half day off on December 31, 1993, whIle he learned of the day off from another employee He testified that durmg a dIscussIOn of hIS grievances, Ms Mason saId to hIm "don't you understand, dear PakI, that you're gomg to be stuck If you don't drop them." He stated that she had told hIm there would be no further GO Temp assIgnments If he dId not wIthdraw hIS gnev ances [5] After the mall clerk posItIOn was filled by the surplus employee, the grIevor was gIven a contract to fill a temporary vacancy m an applIcatIOn clerk posItIOn m the same office That came to an end m March 1994 The gnevor was then transferred to a posItIOn m Etoblcoke, where he worked for several months until he was released from employment altogether m about August 1994 He filed a thIrd grievance wIth respect to hIS release [6] On December 6, 1994, the date set for the Board's hearmg of the grIevor's then outstandmg grievances, the partIes dIscussed settlement and eventually sIgned a wntten agreement ("the Memorandum") that provIded as follows - 3 - 1 The MmIstry will, notwIthstandmg any other prOVISIOn of the collective agreement between OPSEU and the Crown, advertize the classIfied posItion of Office Support Clerk (classIficatIOn OA3) at 56 Wellesley St. W Toronto ("the posItIOn") under ArtIcle 4 m January 1995, wIth the matter commg to full closure by March 30, 1995 and the competItIOn will be restncted to MmIstry of Housmg employees. 2. The grievor will be entItled to apply for the pmntIOn eyen though he IS not presently employed by the MmIstry, wIth full rIghts of gnevance under ArtIcle 4 If he IS not successful. The gnevor will also have full recourse, If appropnate, under all apphcable laws mcludmg the Human RIghts Code 3 Panel members m the competitIOn will be rmpartIal and will choose the successful candIdate m accordance wIth Article 4. The manager to whom the posItIOn reports will chaIT the competitIOn panel. No mformatIOn will be provIded to panel members concemmg the grIevance, human nghts and WDHP proceedmgs whIch preceded thIS settlement, and such proceedmgs will form no part of the panel's consIderatIOn. 4. The gnevor and the UnIon hereby release the MmIstry and ItS employees and agents from any habillty ansmg out of these grIevances and the gnevor's human rIghts complamt (OHRC File No. TE 000619) 5 The gnevor and the UnIon hereby wIthdraw these grIevances and the gnevor agrees to wIthdraw hIS human nghts complamt forthwIth. 6. The parties agree that thIS Memorandum will be made and [SIC] Order of the Board. The Board then Issued a decIsIOn declarmg that the Memorandum would have the force and effect of an a ward of the Board [7] In January 1995, the employer posted a vacancy m a clasSIfied Office Support Clerk posItIOn at the MmIstry's Rent Control office at 56 Wellesley St W, m accordance wIth the terms of the Memorandum of Settlement The gnevor applIed for the posItIOn, as the Memorandum contemplated he could A selectIOn panel constituted m accordance wIth the Memorandum mtervIewed the gnevor and ten other candIdates After the competItIOn closed on March 30, 1995, the gnevor was told that he had not been awarded the posItIOn. The gnevor then filed the present gnevance The Job Competition [8] Braham Kapel was Manager at the Wellesley Street office. He was chaIr of the competitIOn panel. He and the gnevor knew one another, as Mr Kapel had been manager of the North York office from the time the gnevor began work - 4 there untIl about September 1992 The other two members of the competitIOn panel were Maureen Kramer and NIck Laurella. Ms Kramer was then a Human Resources AdvIsor wIth the MImstry Mr Laurella was the ActIng Manager of the North York office NeIther Ms Kramer nor Mr Laurella had had any preVI- ous dealIngs wIth or concernIng the gnevor [9] The competitIOn panel IntervIewed gnevor on March 8, 1995 He testIfied that pnor to that date, probably m February, he saw Mr Kapel at the Scarbor ough Town Centre They had a conversatIOn. The gnevor stated that durmg thIS conversatIOn Mr Kapel saId he dId not thInk management would gIve hIm the pOSItIOn, that they had someone else In mInd for It. He then asked Mr Karpel what he should do, and Mr Kapel replIed that he should prepare hImself. [10] Mr Kapel testified that he and the gnevor had encountered one another at the Kennedy subway statIOn and travelled on the subway together to the Scarborough Town statIOn, that they conversed, that the upcommg Job competI- tIOn was mentIOned and that he told the gnevor he should prepare rumself. He demed havmg saId anythmg to the effect that the outcome was pre-determIned. [11] The gnevor testified that he telephoned Mr Kapel about a week after that encounter, and that Mr Kapel agam told hIm that he dId not thmk he would be selected and that management would make hIS lIfe mIserable and that he should prepare hImself and come to the mtervIew He stated that after that telephone conversatIOn he thought there was hope because Mr Kapel was saymg that he should prepare hImself. He stated that he thought perhaps Mr Kapel dId not want to say clearly that the Job was hIS [12] Mr Kapel testified that the only telephone call he receIved from the gnevor after the encounter m the subway was m the evemng on the day of, and after, the mtervIew The gnevor asked hIm how he had done He replIed that the gnevor had done well but told hIm that he could not say anythmg about whether the gnevor would get the Job -.:- ~ <~-~ - 5 [13] When the gnevor arnved for rus mtervlew on March 8, 1995, he was gIVen a Job descnptIOn to read, and then a reference check form to complete The text of the reference check form authorIzes the Mmlstry to obtam reference mforma- tIon from persons lIsted, and authorIzes the lIsted persons to prOVIde the mfor- matIon. Blanks are prOVIded for a lIst of references and for the Job applIcant's sIgnature The gnevor testIfied that he was gIven no mstructIOn about what to do wIth thIS form, and was stIll fillmg It out 5 mmutes later when he was called m to the mtervlew by the female member of the competItIOn panel. He testIfied m chIef that he mentIOned to her that he had not had enough tIme to fill the form out, but she dId not reply Durmg cross-exammatIon he was asked whether he told any panel member that he had not had enough tIme to fill out the form. He answered that he had thought It would look bad If he asked for more tIme When he and the female panel member entered the mtervlew room, she mtro- duced hIm to the other two panel members He says she then stated "we know your sItuatIOn and Its confidentIal." He took thIS to mean that ElIzabeth Mason had told them all about hIS sItuatIOn. Ms Kramer demes that she saId what the gnevor claIms, or anythmg lIke It. Mr Kapel and Mr Laurella both testIfied that It was not saId m theIr presence [14] Each candIdate was asked the same 8 questIOns durmg hIS or her mter- VIew FIve of the questIOns focused on the candIdate's understandmg of and abII Ity to perform the transactIOnal, day to-day physIcal functIOns of the posItIon. The first of those five questIOns focused speCIfically on IdentIfymg the candIdate's past clencal and mall servIce expenence and explammg how It related to the subject posItIon. The last three questIOns focused on the orgamzatIOnal aspects of the Job how the candIdate would handle the mterpersonal transactIOns lIkely to anse m performmg the Job Each member of the competItIOn panel mdepend- ently assIgned a mark for each answer The panel members dIscussed the marks afterwards. There was no attempt to reach a concensus on scormg The totals of the marks assIgned to a candIdate by the panel members were averaged to de- termme the relatIve rankmg of the candIdate 6 - [15] Ms Kramer acknowledged m cross-exammatIOn that the Job m questIOn mvolved performmg routme manual tasks on a faIrly mdependent basIs, and dId not reqUIre a mgh level of oral commUnICatIOn skIlls The marks Ms Kramer gave to the gnevor for hIS answers to the mtemew questIOns were generally lower than the marks he receIved from Mr Kapel and Mr Laurella for the same questIOns Mr Laurella testified that they dIscussed thIS after the mtemews He saId that durmg that dIscuSSIOn, Ms Kramer had saId that she felt the gIrevor's answers had been mcomplete, that he had not made hIS pomts clearly enough to warrant hIgher scores Mr Laurella testIfied that the gnevor had tended to gIve short, sometimes even one word, answers to some questIOns He thought that, knowmg the Job as they dId, he and Mr Kapel had pIcked up on the gnevor's short answers and had gIven hIm the benefit of the doubt, whIle Ms Kramer, who was less famIlIar WIth the Job, perhaps mIssed part of the Jargon he used [16] The top ranked candIdate, Earl AbalaJohn, had a commerce degree and had qualIfied as a CertIfied PublIc Accountant. He had performed the office sup- port clerk Job m questIOn as an unclasSIfied employee for a three month perIOd m late 1990 Smce then he had been workmg m a mgher paId but still unclasSIfied pOSItIOn as a Rent ReVIew ASSIstant and ApplIcatIOn Analyst m the Rent Control Program. [17] The marks Ms Kramer gave to Mr AbalaJohn for hIS answers to the m tervlew questions were generally equal to or hIgher than the marks he receIved from Mr Kapel and Mr Laurella for the same questIOns That alone dId not ac count for hIS final standmg, however Each of the panel members gave hIm a substantially hIgher mark than he or she gave any other candIdate, mcludmg the gnevor He clearly appeared from the mtervlew to be the best qualIfied ap- plIcant. [18] Reference checks were done for the candIdates WIth the top 7 scores The panel members dIvIded thIs work among them. Each referee was asked the same questIOns The object of the exerCIse as far as the competitIOn panel was con cerned was to determme whether there was anythmg negative that mIght cause ........ - 7 - them not to offer the candIdate the posItIOn. None of the reference checks re- sulted m anythmg negative for any candIdate [19] Ms Kramer revIewed the personnel files for candIdates whose files were readIly avaIlable m the MmIstry Some files, mcludmg the grIevor's, were not readIly avaIlable In hIS case, that would have been because he was no longer a MmIstry employee. Agam, the mtended object of the exerCIse was to determme whether there was anythmg negative that mIght cause the panel not to offer the candIdate the pOSItIOn. Ms Kramer's reVIew of the readIly avaIlable personnel files dId not turn up anythmg negative The candIdates' prevIOus supervIsors were not contacted unless they had been named on the reference sheets [20] No marks were assIgned to the results of the reference checks or the re- sults of the file reVIews The rankmg remamed as It had been, based solely on the marks assIgned to answers gIven durmg the mtervIews. The top ranked can- dIdate, Mr AbalaJohn, was offered the pOSItion, and accepted [21] In June 1996, Mr AbalaJohn was bumped from the subject pOSItion by an employee WIth 21 years semorIty If the grIevor had been awarded the pOSItion, he would hkewIse have been bumped. Accordmgly, the umon IS not askmg that the gnevor be awarded the pOSItIOn, nor that the competitIOn be rerun. The rem- edy claImed by the umon IS twofold. compensatIOn for the loss of the earnmgs the grIevor would have receIved m the subject pOSItIOn between April 1995 and June 1996, and rights eqUIvalent to those of an employee surplused as of the date of the award. Issues and Argument [22] In closmg, umon counsel argued that the employer had breached ItS agreement (m the Memorandum) to conduct the Job competitIOn m accordance WIth ArtIcle 4 of the collective agreement because 1 It dId not enter mto the Job competitIOn m good faIth, m that the Mm- IStry was prejudIced agaInst the grIevor, the panel members had Ill- - 8 - hented the dIscnmmatory VIews of ElIzabeth Mason and It had been pre-determmed that the gnevor would not be the successful candIdate, and, 2 It gave no weIght to whether the candIdates had performed the very Job m Issue (mdependent of marks assIgned to answers to questIOns about the Job), nor to theIr supervIsors' appraIsals of theIr Job perform ance (eIther by contactmg the supervIsors or by assessmg the supervI sors' performance appraIsals m the candIdates' personnel files), con- trary to ArtIcle 4 as mterpreted m MacLellan and Degrand~s, 506/81 (Samuels) and other Board decIsIOns The first ground rested on the gnevor's testImony about Ms Mason's conduct, events at the North York office after she began workmg there, Mr Kapel's al leged assertIOns pnor to the mtervIews that the result of the competItIOn was predetermmed, the remark Ms Kramer was alleged to have made when the gnevor entered the mtervIew room and the proposItIOn that the panel members knew more about the settlement and ItS antecedents than was proper [23] Employer counsel took the posItIOn that the umon's second pomt was a new claIm not properly before me m thIS proceedmg ThIS was bound up wIth an assertIOn that the partIes had had an understandmg that the gnevor's rIghts under the Memorandum to gneve the results of the agreed-upon competItIOn would only be those that would have been enjoyed by an unclassIfied employee under the collectIve agreement. Employer counsel asked that I lImIt the hearmg to the claIms of bad faIth and dIscnmmatIOn or, alternatIvely, permIt her to re- open her case to mtroduce addItIOnal eVIdence As dIscussed m my decIsIOn of November 6, 1997 m tills matter, the hearmg was adjourned to permIt employer counsel to seek mstructIOns and delIver partIculars of the further eVIdence she wIshed to mtroduce. Pnor to the final day of the hearmg, counsel agreed that the partIes' argument about the scope of gnevance nghts under the Memorandum would be addressed on the basIs of eVIdence already before me, and that no fur ther eVIdence would be mtroduced wIth respect to the ments of the gnevance - 9 - [24] Employer counsel argued that apart from the alleged "dear Palti" remark, the conduct attributed to Ms. Mason was at worst ImpolIte As for the alleged "dear PakI" remark, counsel submItted that It was not belIevable that Ms Mason would have met wIth the grIevor alone to dISCUSS hIS grievances on the occaSIOn when he alleges she made that remark. She submItted that the changes m the grIevor's Job responsibIlIties followmg Ms Mason's arrival were consIstent WIth hIS prior dutIes havmg been assIgned to the surplus employee In any event, whatever may have happened whIle the grIevor was employed m the North York office, counsel urged me to accept the eVIdence of Mr Kapel and the other mem bers of the competitIOn panel and find that the competition was conducted m good faIth and wIthout mfluence by Ms. Mason. She further submItted that m the context m whIch It was made, the language of the Memorandum only gave the grIevor the right to grieve about bad faIth or dISCrImmatory conduct, but not about other flaws of the sort he had complamed of m the alternatIve Reference was made m that regard to McIntosh, 3027/92 (DIssanayake), and deCISIOns re- ferred to m It. In the alternative, employer counsel argued that any such flaws had not affected the outcome of the competitIOn and should not, therefore, be grounds for any remedy, cItmg Va~llancourt, 1620/87 (WIlson), Peters, 1423/90 (Kaplan) and Sauve, 1695/91 (Gray) In that regard she noted that the employer IS not oblIged to assIgn marks to the results of such thmgs as reference checks or the performance appraisals found durmg file reVIews Decision [25] The grIevor was by all accounts a good worker He dId a good Job as an Of- fice Support Clerk m the North York office No doubt he could have done a good Job as an Office Support Clerk m the downtown office LIke others m the unclas sIfied servIce, he had contmued to work at temporary Jobs m the hope of some day wmnmg a claSSIfied posItIOn and the Job security that went wIth claSSIfied status LIke other good workers m the unclaSSIfied servIce, he saw hIS prospects of permanent employment fade wIth downsIzmg, along wIth hIS prospects for contmued temporary employment. The number of qualIfied applIcants vastly ex - 10 ceeded the number of Job opportumtIes, and those opportumtIes were mcreas- mgly claImed by permanent, classIfied employees who were bemg dIsplaced from theIr own Jobs [26] The gnevor's complamts about hIS alleged mIstreatment m the North York office were settled, WIthout admISSIOn of wrongdomg, by the WIthdrawal of those complamts m exchange for the opportumty to compete for a classIfied Of- fice Support Clerk pOSItIOn m the downtown office But for the settlement, the gnevor would have had no nght to partICIpate m that competitIOn. Indeed, but for the settlement the competitIOn probably would not have been held [27] At the time of the settlement and the subsequent Job postmg, the applIca- ble collectIve agreement provISIOns were those m the agreement that covered the perIOd January 1, 1992 to December 31, 1993 Under that collectIve agreement, unclaSSIfied employees were only covered by some of the prOVISIOns of the Job postmg artIcle They were covered by ArtIcle 4 1, wruch proVIded for the postmg of vacanCIes, and Artllce 4 4, whIch prOVIded for time off WIth pay to attend a Job mtervIew They were not covered by ArtIcle 43 1, wruch prOVIded as follows. 4.3 1 In fillmg a vacancy the Employer shall gIVe prrmary conslderatlOn to qualIficatIOns and ability to perform the reqUIred dutIes. Where qualIficatIOns and abIhty are relatIvely equal, length of contmuous servIce shall be the declClmg factor The effect of excludmg thIS artIcle from the lIst of artIcles applIcable to unclassI fied employees was that unclaSSIfied employees dId not have a general nght to gneve about the results of Job competitIOns McIntosh, supra. [28] The partIes negotiated the Memorandum m that context. They prOVIded m paragraph 2 that the gnevor would have "full nghts of gnevance under ArtIcle 4 If he IS not successful" and m paragraph 3 that "Panel members WIll choose the successful candIdate m accordance WIth ArtIcle 4" In my VIew, those prOVI- SIOns mcorporated all of the prOVISIOns of ArtIcle 4, mcludmg 4 3 1, mto the set- tlement as oblIgatIOns of the employer, and gave the umon and the gnevor the correspondmg nght to enforce those oblIgatIOns. As a result of the settlement, lI- the gnevor had the same "full nghts of gnevance under ArtIcle 4" that a claSSI- fied employee would have had under the collectIve agreement. [29] I am not persuaded that the Job competitIOn was conducted m bad faIth. I found all three members of the competitIOn panel entirely credible I accept Mr Kapel's account of hIS conversatIOns wIth the gnevor concermng the Job competi- tion. The grlevor's claIm that Mr Kapel saId somethmg to the effect that the out- come was predetermmed IS mherently Implausible Havmg seen them both tes tIfy, It seems to me far more lIkely that the gnevor mIsheard or mlsmterpreted or, perhaps, mIsrepresented what Mr Kapel saId than that Mr Kapel Said what the gnevor claIms to remember hearmg Indeed, I findmg Mr Kapel's testimony more belIevable m every mstance where It dIffers from the gnevor's. Whether or not Ms Mason saId and dId the thmgs that the gnevor attributes to her, I accept the testimony of the panel members that they were not mfluenced by her many way Accordmgly, It IS unnecessary for me to decIde whether Ms Mason had a dlscnmmatory attItude toward the gnevor If she dId, that dId not tamt the de- liberatIOns of the Job competitIOn panel. [30] The Settlement provIded m paragraph 3 that No mformatIon will be provIded to panel members concermng the gnevance, human nghts and WDHP proceedmgs whIch preceded thIS settlement, and such proceedmgs WIll form no part of the panel's consIderatIOn. ImtIally, the umon's argument suggested, as had the thrust of questIOns put to panel members m cross-exammatIOn, that It would have been Improper for the panel members to have known anythmg about the terms or even the eXIstence of the Settlement. Dmon counsel eventually conceded, however, that It would not have been contrary to paragraph 3 of the Settlement for panel members to have known of the eXIstence or even the terms of the Settlement I am satisfied that the panel members other than Mr Kapel knew no more than that the gnevor was elIgible to compete as a result of the settlement of a gnevance They knew nothmg about the proceedmgs that preceded the settlement. Mr Kapel had been summoned as a WItness to the hearmg of December 6, 1994, so he may well have 12 known somethmg about Issues m dIspute m the settled grIevances He was on hand durmg the negotIatIOn of the Memorandum. He was the manager to whom the posItIOn described m paragraph 1 of the Settlement would report. The UnIon and grIevor knew all that when they agreed, m paragraph 3, that the manager to whom the posItIOn would report would chaIr the panel. I am satIsfied that there was no breach of the last sentence of paragraph 3 of the Settlement [31] The reqUIrements of ArtIcle 4 of the collectIve agreement then m effect, and partIcularly the reqUIrements of ArtIcle 43 1, have been the subject of a number of deCISIOns by the GrIevance Settlement Board The use of mtervIew re- sults as the sole baSIS for determmmg "qualIficatIOns and abIlIty to perform the requIred dutIes" of a pOSItIOn has been deprecated where the deCISIOn makers have Ignored the employer's corporate knowledge of candIdates' past perform- ance and of other mdIcIa of qualIficatIOns and abIlIty' see the deCISIOns CIted at page 19 of Sauve, 1695/91 (Gray) ThIS passage from the deCISIOn m MacLellan and Degrand~s, 506/81 (Samuels) has often been quoted as settmg out the conse- quences of the partIes' agreement that the employer must consIder "qualIfica- tIons and abIlIty to perform the reqUIred dutIes" The Junsprudence of thIS Board has establIshed vanous cntena by whIch to Judge a selectIOn process 1 CandIdates must be evaluated on all the relevant quahficatIOns for the Job as set out m the POSItIon SpecIficatIOn. 2. The vanous methods used to assess the canchdates should address these relevant quahficatIOns msofar as IS possible For example, mteIVIeW ques. tIOns and evaluatIOn forms should cover all the quahficatIOns. 3 Irrelevant factors should not be conSIdered. 4. All the members of a selectIOn commIttee should reVIew the personnel files of all the applIcants. 5 The applIcants' supervIsors should be asked for theIr evaluatIOns of the ap plIcants. 6. InformatIOn should be accumulated m a systematIC way concernmg all the applIcants. See Remark, 149/77, Qmnn, 9178; Hoffman, 22179' Ellsworth et ai., 361180' and Cross, 339/81. - 13 - There IS no suggestIOn here that the panel mIsconceIved the relevant qualIfica- tIons for the Job, or that eIther theIr mtervlew questIOns or theIr markmg scheme were mherently mapproprIate The umon argues that because the panel dId not follow the mstructIOns m paragraphs 4 and 5 of the quote from MacLellan and Degrand~s, supra, the grIevor should have been the successful candIdate and should be compensated and gIven other remedIes to put rum m the same POSI- tIon, so far as It IS now possible, as If he had been awarded the Job [32] SupervIsors and personnel files can prOVIde relevant mformatIOn about past performance, partIcularly performance of sImIlar or IdentIcal functIOns The Board has saId that such mformatIOn should be taken mto account m assessmg an applIcant's qualIficatIOns and abIlIty to perform the reqUIred dutIes of the Job A panel that falls to proceed as outlmed m the above-quoted passage from MacLellan and Degrand~s, may not receIve and conSIder all the relevant mfor- matIon avaIlable to It WIth respect to qualIficatIOns and abIlIty That may result m a selectIOn that IS not m accordance WIth the actual qualIficatIOns and abIlItIes of the candIdates, and such a deCISIOn would be m breach of ArtIcle 4 3 1 [33] Here, the panel solICIted mformatIOn about past relevant Job experIence m ItS first mtervlew questIOn, mltIally assumed m the applIcant's favour that Job performance had been good, and then used reference checks and file reVIews to test that assumptIOn. It dId not examme all the files to whIch WIth more effort It mIght have had access It dId not questIOn past supervIsors m every case On the Board's JUrIsprudence, those are methodologIcal weaknesses or "flaws" m the conduct of the competItIOn. DId those flaws result m a breach of the prOVISIOns of ArtIcle 4 that the partIes mcorporated by reference mto the Settlement, how ever? DId they result m a deCISIOn that was not m accordance WIth the relatIve qualIficatIOns and abIlItIes of the candIdates? [34] The umon IS askmg for a remedy that IS the analytIC eqUIvalent of awardmg the grIevor the pOSItIOn m questIOn. The onus IS on the umon to show not only that the competItIOn was methodologIcally flawed, but also that but for the IdentIfied flaws the grIevor would have been the successful candIdate D - 14 Bent, 1733/86 (FIsher), Sauve, supra. The umon argues that past experience should have been gIven mdependent weIght by assIgmng It pomts, that the grIevor's 6 years' experience performmg the Job m questIOn should have been gIven more weIght than Mr AbalaJohn's 3 months' experIence, and that the dIf ference would have tipped the balance m the grIevor's favour [35] It IS not at all ObVIOUS that someone who has done thIS partIcular clerical Job satIsfactonly for 6 years IS more qualIfied or able to perform the necessary duties than someone who has performed It satIsfactonly for 3 months and then moved on to work for four years m another pOSItIOn m the office orgamzatIOn served by the subJect pOSItIOn. There IS no eVIdence or suggestIOn that anythmg else that could be dIscovered from revIewmg the personnel files or speakmg WIth ofrmer supervIsors would favour the grIevor over Mr AbalaJohn. Assummg m the umon's favour the debatable propOSItIOn that a dIstmct score for past experI ence and performance should have been aSSIgned and added to the mtervIew scores, I am not persuaded on a balance of probabIlItIes that the grIevor would have achIeved a hIgher score than Mr AbalaJohn If that had been done WhIle the grIevor undoubtedly had suffiCIent qualIficatIOns and abIlIty to perform the Job, the umon has not persuaded me that hIS qualIficatIOns and abIlIty were su perIor (or even equal) to those of the successful candIdate, Mr AbalaJohn. [36] For these reasons, thIS grievance IS dIsmIssed. Dated at Toronto tills 8th day of June, 1998