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HomeMy WebLinkAbout1997-1404.Netta et al.99-12-20 Decision i\~AFLI EUEL 'E LA ,'E rill'f EUE L "TE,c E L i\~AFLI GRIEVANCE COMMISSION DE -- SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONBTELEPHON~ (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 128 FACSIMILBTELECOPIE (416) 326-1396 GSB # 1404/97 0846/98 0847/98 0848/98 0849/98 OLBEU # OLB242/97 OLB272/97 OLB253/97 OLB314/97 OLB273/97 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SElTLEMENT BOARD BElWEEN Ontano LIquor Board Emplovees Umon (Netta et al) Grievor - and - The Crown 111 Right of Ontano (LIquor Control Board of Ontano) Emplover BEFORE Loretta Mikus Vice Charr FOR THE ElIzabeth Mitchell GRIEVOR Counsel, KoskIe & Minsk, Barnsters & SolIcItors FOR THE AlIson Renton EMPLOYER Counsel, LIquor Control Board of Ontano HEARING October 15 1998 November 27 1998 Januan 18 19 25 1999 F ebruan 15 1999 March 1 1999 June 28 1999 There are five gnevances before me concernmg a Job competITIOn for sIxteen vacancIes for Customer ServIce RepresentaTIve pOSITIOnS at the LBCO The gnevances anse from a new provIsIon m the collectIve agreement whIch the partles agreed to mclude m the 1996-1998 CollectIve Agreement and whIch reads as follows. LEITER OF AGREEMENT Permanent Vacancv Review Retail-Permanent Part-TIme 1 All currently employed Permanent Part-TIme employees who worked sIxteen hundred (1600) hours or more m 1995 shall be offered Penn anent Full-Time employment, Wlthm the geographIc pOStlllg area m whIch the, are currently employed, wIthlll three (3) months of the ratificatIOn date of tlus Agreement, provIded Ius/her most recent performance appraIsal was rated at level 3 or better and has a satisfactory attendance and dIscIphne record. Should a Permanent Part-Time employee not qualm to be offered Permanent Full-Time employment, he/she will be reconsIdered as per these tenns at subsequent annual reVIews, pnor to March 31 VIa the Local Labour Management CommIttee Once a permanent Part-TIme employee has been offered Permanent Full-TIme employment as per these tenns, he/she shall have one (1) week to accept such offer Failure to respond will be deemed as not acceptlllg the offer of pennanent full-tune employment. 2 NotwIthstandlllg the above, Permanent Part-T11lle employees who choose not to accept the offer of Pennanent Full-Time employment shall have the nght to contlllue as Permanent Part-Time employees and all nghts currently apphcable to these employees shall contmue to apph 3 It IS understood the posItIOns vacated b, Permanent Part-TIme employees acceptlllg Pennanent Full-Time employment will not be posted. Further the clasSIfication and terms and condItions pertallllllg to Permanent Part-TIme employees will cease to eXIst when the remauung Pennanent Part-Tune employees eXIt the orgamzatIon. DIstribution - Casuals Witlun three (3) months of the date of ratIfication, the Employer agrees to post thIrteen (13) pennanent full-tune vacanCIes lllcludlllg vacanCIes currently posted. Penn anent Full-Time VacancIes 2 3 Followmg the determmatIon of the number of PPT emplovees that are offered penn anent full-tune emplovment, casual hours of work shall be revIewed dunng the annual reVIew b, the Local Labour Management CommIttee The purpose of thIS reVIew will be to detenn111e If penn anent full-tune vacanCIes eXISt. SpecIficalh casual emplovees work will be revIewed where he/she works 111 excess of (a) I 600 hours or more 111 Warehous111g (b) I 700 hours or more m Retail Stores m the prevIOUS calendar vear It IS agreed that work resultmg from the followmg will be excluded from the reVIew' - sIckness and/or accIdent - vacatIon and leaves of absence mcludmg Jun duty bereavement, Umon busmess, etc - temporan transfer/assIgnments - modIfied work programs - acconllnodatIons as reqUIred b, legIslatIon -overtIme Should a casual emplovee work m the same posItIon and Department/Store as per the hours hsted above for reasons other than those hsted above, a vacancy shall be declared and posted 111 accordance wIth the CollectIve Agreement provIded It IS not already posted and/or there are no dIsplaced Permanent Emplovees m hIs/her work area. The Emplover shall provIde the Umon WIth all 111formatIon pertment to the reVIew ThIS letter shall commence WIth the ratIficatIon of the CollectIve Agreement. As a result of that new language, a file reVIew was performed by the Employer wlnch resulted m a Job postmg m May of 1997 for 16 Customer ServIce RepresentatIves Heremafter referred to as .CSR.) full tJme pOSITIOnS m Area G, wlnch IS MissIssauga, Oakville and Brampton. The pOSITIOn pOSTIng was open to all LCBO permanent part-TIme and casual employees m the area and stated the followmg: Under the general supervIsIOn of the Manager vou will provIde prompt, courteous and knowledgeable customer servIce m accordance wIth the Customer ServIce Standards of Excellence, partIcIpate 111 and comph wIth corporate ulltIatIves as made mandaton (e.g. PKCC levels, SMAART), keep abreast of and partIcIpate 111 t1l11eh executIon of Read, for Bus111ess and Retailer of ChOIce Standards, receIve, handle, store and rotate stock 111 orderly svstematIc and safe manner adhere to OccupatIonal Health and Safety WCB and WHMIS gUIdehnes, support and contribute to a hannomous and productIve work envIromnent, follow securIty procedures of LCBO funds, stock and propertIes, exhibIt abihty to operate computenzed svstems and 111terpret financIal 111fonnatIon, promptly and accurateh complete all store reports and records, be prepared to work extended hours based on operatIonal reqUIrements. 4 Under quahficaTIons were hsted. PosItIon reqUITes tact, diplomacy good oral and wntten conllnmllcatIon skills, abihty to mamtam and contribute to posItIve mterpersonal relatIons wIth customers, LCBO emplovees and tramed representatIves, mathematIcal, clencal and accomltmg skills, abihty to operate computenzed tenlllnals (office or cash regIster tenlllnals), good knowledge of cashIenng and secunty procedures, mItIatIve and rehabihty abihty to work WIth mm1lllUlll supervIsIon and routme checks, abihty to meet the essentIal phvsIcal reqmrements of the Job general knowledge of products and servIces offered b, the outlet and b, the LCBO whIch ma, mclude servIcmg of hcensees and agencIes m a socIally responsible manner You should also demonstrate an awareness of and support the LCBO strategIes mcludmg Customer ServIce, Excellence, That's The Spmt, and Read, For Busmess Standards. You will have successfully completed Product Knowledge Level II and workmg towards Product Knowledge Level 3 The posTIng also stated the followmg: PLEASE NOTE. - The area of search will be the geographIcal postmg area. - AQ-35 Form must be submItted wIth vour store number or department number Emplovee IdentIficatIon nmnber and the appropnate postIng nmnber accurateh recorded. - Quahfied PPT candIdates will be selected m accordance wIth the procedures under ArtIcle 21 of the CollectIve Agreement. - CandIdates from Casual status will onh be consIdered when there are no quahfied Penn anent Part-Tune Emplovees. - Casual candIdates will be selected m accordance wIth the procedures under Article 31 4 of the CollectIve Agreement. - CandIdates must meet the followmg mUllmum cntena m order to be consIdered. a) Past satIsfactory work performance b) SatIsfactory dIscIphne m attendance records, c) French language servIces reqmrements, where apphcable - Casual candIdate quahficatIons will be detenlllned through a proces s consIstmg of a scored mtervIew and scored past performance appraIsals - A cIrcular will be Issued announcmg the successful candIdate ArtIcle 31 4 of the CollecTIve Agreement referred to above reads as follows (a) Casuals shall have the nght to apph for certam pennanent part-tIme posItIons m 5 accordance wIth the provIsIOns of ArtIcle 21 AssIgnments & Job Postmgs. However accept as noted 111 ArtIcle 21 5(b) (specIalment promotIon), the, shall onh be ehgible to apph for vacanCIes wIthm theIr geographIcal areas If there IS no Permanent Part- Tune Emplovee promoted 111 accordance wIth ArtIcle 21 5(a) (b) The Emplover agrees to gIVe consIderatIon to the quahficatIons and abihty of casuals for pennanent full-tune vacanCIes at the enm level 111 theIr geographIcal area, provIded that no permanent part-tIme emplovees have apphed. Where quahficatIons and abihty are relatIveh equal, semonty shall be the determmmg factor As a result of that posTIng, 65 candIdates were deemed to have saTIsfactory work performance and attendance records 40 of those apphcants made the short hst for mtervIews. Followmg the mtervIews, numerous employees filed gnevances about the failure of the Employer to award them one of the vacanCIes. By the TIme the heanng was set for these gnevances, five remamed outstanding. Each of them gneve that they were Improperly demed a CSR pOSITIOn and asks that they be awarded the full-tIme pOSITIOn WIth retroactIve semonty wages and benefits. The Dmon took the pOSITIOn that the Job cOmpeTItIOn was flawed m several aspects. It was argued that no mtervIew was necessary gIven that all of the gnevors were clearly qualIfied to do the work. The Job apphcants were evaluated on the basIs of theIr Job apphcaTIon, mtervIew and prevIOUS performance appraIsals. No resumes were requested or consIdered, wlnch would have gIven the mtervIew panel a more complete pIcture of the apphcants. It was also argued that the composItIOn of the mtervIew panel was Improper wlnch gave some apphcants an advantage over others. The weIghTIng of 40% for the performance appraIsals and 60% for the mtervIew was Improper and, as a result, the gnevors were graded more on theIr abihty to handle an mtervIew than on theIr abihty to perform the work. It was also the contenTIon of the Dmon that the apphcants were never told that theIr performance appraIsals would be used 6 m Job cOmpeTItIOns and, therefore, thmgs that they mIght otherwIse have taken exceptIOn to, they dId not. It was also saId that the screemng process used by the LCBO mlsapphed the concept of relaTIve equahty or, m the alternaTIve, apphed It too narrowly Finally It was the Umon's pOSITIOn that the LCBO has never used tlns process m awarding pOSITIOnS to casual employees but has always awarded Jobs on the basIs of semonty The LCBO took the pOSITIOn that It had taken the appropnate factors mto consIderaTIon m deterrmmng who should be awarded the customer servIce representaTIve Jobs They revIewed the last two performance appraIsals on file, mespec1:1ve of the mtervals between them. The panel selected theIr quesTIons from a bank of quesTIons provIded to them and weIghted them accordingly ArtIcle 31 4 was apphed properly the process was faIr and the mdlvldual selecTIon was made on a reasonable basIs. THE FACTS Ms. HeIdI MacNeil has been workmg With the LCBO smce June of 1990 and for the last four years has been a Human Resources ASSIStant m the central regIOn wlnch extends from Niagara Falls to Scarborough. One of her major responsibihTIes IS recruItment, and she has been mvolved m several Job compeTITIons mvolvmg casual pOSITIOns. She has a thorough knowledge of the Job dUTIes of a CSR. She IS mvolved m revIeWing theIr Job descnpTIons, bemg aware of theIr performance appraIsals, speakmg to the store managers and generally workmg m the envIronment. She did not prepare the actual Job postmg but did 7 make mmor modificaTIons WIth respect to the Job locaTIon and pOSTIng dates. The Job postmg Itself IS standard With respect to the quahficaTIons reqUIred. It was sent to her from Mr MacNaughton, the DIrector of Human Resources, revIewed by the RegIOnal DIrector Harry Flynn and dIstributed to all the stores m the area. Any part-TIme or casual employee m Area G was ehgible to apply She and her manager prepared a recruItment process document settIng out the stages of the recruItment process. Step 1 was the posTIng of the notIce Step 2, the screemng process, stated as follows Ehgible candIdates' dIscIphne, attendance and performance appraIsal records are revIewed. Must have satIsfacton dIscIphne, attendance and perfonnance appraisal or are screened out. In a handwntten note It also stated - P.A. on file as of date of closmg- Step 3 the IntervIew Process stated as follows Detenmne the number of emplovees to be mtervIewed b, rankmg m selllonn. order and usmg between a 3-1 and 2-1 ratIO Look for gaps m selllonn. where possible IntervIew usmg bank of CSR questIons. WeIghtmg of performance appraIsal will be 40%. WeIghtIng of mtervIew will be 60%. Step No 4 the DetermmatIOn of Successful Candidate(s), stated. Overall pass mark will be 50%. RelatIveh equal spread will be 20%. Rank m order of overall score PromotIons are granted to the selllor emplovees wItllln the 20% spread. Then, based on the applIcatIOn forms, employee files and the semonty dates, she prepared a lIst of the apphcants settmg out theIr store number locatIOn and semonty dates. The candIdates were vetted to determme whether they had been the subject of dIscIphne. Dunng tms cOmpeTItIOn, one applIcant had a notaTIon for discIphne and Ms. MacNeil dIscussed that apphcant wIth the DIStnct Manager Mr W oon, who advIsed her that he had responded pOSITIVely to the discIple and approved mm for the candidate's hst. 8 Then followed the process of revIeWIng and weIghtmg performance appraIsals. It was determmed that the two most recent appraIsals on file would be used for purposes of the Job compeTITIon and each appraIsal could receIve a maXImum of 25 pomts. In the past there have been three different systems used to evaluate employees. The newest performance appraIsals had been performed usmg the folloWIng five levels of achIevement: -outstanding- -meets expectaTIons- and -change reqUIred- They were gIven the folloWIng values respectIvely- 1 05 and 0 Another five level system was completed on a different five level formula WIth the folloWIng values. -ExcepTIonal performance- Above Average performance- -consIstently meets reqUIrements- performance mImmally saTIsfactory Improvement reqUIred- and -performance does not meet Job reqUIrements- Those levels were gIven the folloWIng values respectIvely- 1 05 and 0 Finally earher evaluaTIons had been marked on a 4 level system WIth the folloWIng values "more than meets reqUIrements" -meets reqUIrements- -development reqUIred- and "unsaTIsfactory" These levels were valued respectIvely 1 75 .25 and 0 If an apphcant rated a score of 1 m a category that score was multIphed by a factor of 1 If that same apphcant scored a 3 m another category that score would be mulTIphed by a factor of 05 or.25 depending on the system bemg converted. In that way all of the values attributed to the vanous categones were converted to a numencal value that was worth up to 40% m the Job competItIon. Ms. MacNeIl then prepared mtervIew hsts for the week of July 14 to July 18 1997 wIth an average of 8 mtervIews per day The mteMew cOlruruttee was provIded WIth a senes of quesTIons from whIch they were to choose ones that were appropnate for the mtervIew They could choose as many questIOns as they WIshed so long as the total number of pomts did not exceed 30 m anyone category or 100 pomts m total. They chose, for example, two questIOns on customer servIce, one worth 20 marks, the other worth 10 for a total of30 They chose two quesTIons on mventory management, one worth 15 pomts, the other worth 10 for a total of 25 They chose a 20-pomt quesTIon on merchandIsmg, a 15-pomt questIOn on loss prevenTIon and secunty and a 10-pomt quesTIon on SOCIal responsibIhty for a total of 100 pomts. The questIOns were pre-packaged and contamed the tOpIC, the quesTIon and the suggested answers. For example, m the area of customer servIce, the questIOn was 9 Our Customers ServIce Excellence Program encourages us to mteract wIth our customers to meet theIr demands. Describe for me a tune when vou assIsted a customer who IS consIdenng a dmner wme purchase What questIons dId vou ask? What, IT anvthmg, was asked of vou and how dId vou reph? The suggested answers were - What will vou be servmg for dumer? - What sweetness do vou prefer? - How maIly people will there be? - What wmes have vou tned before that vou enJoy? - Do vou like whIte or red wme? - What pnce range are vou consIdenng? - Do vou have a preference for a partIcular counm? Another questIOn on Merchandismg asked. You are assIgned to set up the dIsplavs for the new penod. LISt the steps vou take to set up the dIsplay The suggested answers were CleaIl Phnths - detenmne quantIty - sIgnage - pncer card - reCIpe cards - heIght of dIsplay - Image book - seasonahty - cut quantIty cases - backer cards - promotIonal matenal, e.g. haIld outs - ballots - aIsle wIdth - locatIon - profitabihty - traffic flow The mtervIews were held m the MissIssauga depot m a large traImng room wlnch was set up much like a board room. The three mtervIewers sat across the table and the candIdates sat m front of them. It was agreed that the room was qUIte cool In front of the candIdates stood a water glass and a notebook. The mtervIew began With casual conversaTIon to welcome them and explaIn the process. The mtervIewers told them they would be wnTIng down theIr answers and, therefore, mIght not be able to mamtaIn eye contact. They advIsed the candidates that they would repeat any queSTIons If necessary and that they could come back to any queSTIon If desIred. The quesTIons were asked on a rotatIOnal basIs by each of the commIttee members, startIng With Ms. MacNeil, Mr LeIgh and then Mr Scott. The mtervIewees were told that each mtervIew had been allotted approxImately 45 mmutes. 10 At the conclusIOn of the mtervIews the candIdates were asked whether they had any queSTIons and were gIven an opportumty to raise any concerns. When they left the room the commIttee added up the pomts they had allocated to each candidate mdivIdually and discussed them collectIvely In a number of cases theIr answers were close enough to conSTItute agreement. OccasIOnally the marks vaned and the commIttee members revIewed each of the quesTIons and compared theIr answers to see If one of them had mIssed somethmg. The commIttee members. pomts m most respects were close enough to conSTItute unammIty As the candidates were asked the questIOns, the mtervIewees made tIck marks besIde the suggested answers and at the end of the mtervIew counted up those marks. In some mstances, they gave addiTIonal marks for answers not on the suggested hst but relevant to the queSTIon. For example, one of the candidates receIved a score of 5 out of lOon the customer servIce quesTIon referred to earher In addiTIon to provIding three of the pnnted answers, he also menTIoned promOTIng Canadian Wines and suggested that the customer could get the Wine of theIr choIce from another source, perhaps by calhng another store. He receIved two pomts m additIOn to the ones hsted above for those answers. In some mstances the quesTIons were gIven more pomt value than the suggested answers hsted. For example, on a questIOn regarding the candidate's role m managIng the mventory of the stores, there were 9 suggested answers but the value of the questIOn was ten. Some of the addiTIonal answers provIded were counted while others were not. For example, m the loss 11 prevenTIon and secunty area, a candidate receIved a pomt for floor surveillance and another pomt for vIdeo surveillance. Ms. MacNeil explamed that the pomts were allowed because the candidate, m refemng to floor surveillance, meant watchmg the customers whereas the vIdeo cameras were meant to be used m a broader sense However m the area of customer servIce, the candIdate did not receIve addItIOnal pomts for commenTIng about havmg cash regIsters ready With clean tapes because, m her VIew that came under the category of "Ready for Busmess. not secunty At the conclusIOn of the mtervIews, Ms. MacNeil prepared a chart of the mtervIew results With the candIdates. names, store locaTIon, total appraisal and mtervIew score, semonty date, whether they were promoted and, If so, to what store The lnghest score attamed by the applIcants was that of Mr Scott Grech, wlnch was 73%. His semonty date IS May 20 1993 It had been determmed that candidates were reqUIred to have a mImmum of 50% and that a 20 degree spread from the hIghest score would conSTItute relaTIve equalIty Therefore, anyone who scored below 53% was not offered a posItIOn. The gnevors fell mto that group Mr Antomo Netta scored 43%, Mr Les Marozsan, 51 %, Mr Bruce Parkm 39%, Ms. Rosemane Noms 43% and Ms. Margaret Babcock 55% None of them were offered pOSITIOnS and It IS theIr gnevances that are before me. In cross-exammaTIon, Ms. MacNeil agreed that the Job dUTIes of a casual permanent part-TIme and full-TIme CSR are sImilar The differences, m her VIew are that casual employees do not have the same exposure to the full operatIOn of the store, mcludmg office procedures. In smaller stores m partIcular there IS less opportumty for a casual employee to perform the full range of a CSR-s Job OtherwIse, the pnmary 12 responsibihty of casual, permanent part-TIme and full-TIme CSR.s IS to provIde servIce to the customers. Ms. MacNeIl also stated that It was llTelevant whether or not they had "run a slnft" because It dId not pertam to the quesTIons that they were speCIfically askmg. "Runrung a slnft" means takmg total responsibihty for the store for an enTIre ShIft. She also suggested that It was not relevant whether the candidates had worked m a large or small store, that theIr only concern as a panel was to obtam the suggested answers for the quesTIons. She also agreed that there had been some complamts from the candidates after the mtervIews about the sconng and the mTImIdaTIng settIng and the nervousness It produced. She stated however that they attempted to make the apphcants as relaxed as possible They told the candIdates to take theIr TIme and to come back to any queSTIons If they wanted to add anythmg to theIr prevIOus answer They attempted to make the mtervIew as non-threatemng as possible She was asked why she dId not advIse the candidates that there were actually 16 Jobs at Issue She stated that If asked, she told the candIdates about the number of pOSITIOnS and agreed that some of them had suggested that It was an unfair process. Ms. MacNeil also agreed that If a candIdate had quahficatIOns beyond those bemg sought, for example, Product Knowledge 3 they receIved no addiTIonal credit because It was not a Job reqUIrement. Ms. MacNeil spoke to Mr MacNaughton about the fact that some managers seemed to be more generous than others III compleTIng the performance appraisals. She raised It m the context of msunng a more consIstent approach m the future. She also reported to Mr MacNaughton that she had heard employees comment on the fact that, If they had known of the Importance of the performance appraIsals, they mIght have made more of an Issue of some of the comments m them at the TIme. She did 13 not raIse It as an Issue of faIrness, but sImply as an mformatIOnal comment. Ms. MacNeil also conceded that none of the addiTIonal comments made on any of the performance appraIsals were taken mto account m the numencal converSIOn. If an employee had been praIsed for a partIcular keenness m any area, It was not relevant to the quesTIons bemg asked. The commIttee made no addITIonal mqumes about the performance appraIsals beyond the numencal converSIOn. She stated that she was operatmg under the assumptIOn that each manager scored faIrly It was only after the mtervIews and some employees raIsed the Issue of faIrness that she reconsIdered her assumpTIon. As well, employees workmg m specIalty stores or m areas other than the customary retail outlets receIve no additIOnal credIt for theIr expenence. For example, one of the gnevors worked m a vmtage store and another worked m the warehouse No adjustments were made m theIr sconng to take theIr work locatIOns mto consIderaTIon. Mr Charles Scott was another member of the mtervIew commIttee He began workmg for the LCBO m 1982 as a casual and became a permanent C SR, bookkeeper manager of a B store, and manager of an A store m MissIssauga With responsibihty for all functIons of human resources, mventory and sales. In 1988 he became an mvestIgator WIth loss prevenTIon. He had prevIOusly served as panel member m Job compeTITIons concernmg the hmng of casual employees mto entry level pOSITIOnS and promOTIons from B to A stores. Tms was the first TIme he had been mvolved m a compeTITIon of casual employees applymg for full TIme pOSITIOns. He had been traIned several years ago as an mtervIew cOlruruttee member wmch traIling mcluded forrrung the commIttee, selectIng the quesTIons and markmg of the answers. He was appomted to thIs commIttee by the distnct manager of the area, Mr Bob W oon. He was unaware at the TIme of the total 14 number of pOSITIOnS to be filled. He had worked for the LeBO for a number of years at the TIme of the mtervIews and knew many of the candidates, some by name only some who had worked With mm m the past or presently and others he knew socIally He could not remember what mvolvement, If any he had With the converSIOn of the performance appraIsals. He recalled workmg m the distnct office at the TIme and havmg dIScussIons With Ms. MacNeil and Mr LeIgh about how the sconng would be done but could not remember whether he actually had a part m determImng the final scores. The mtervIew panel met for the first TIme early m the mornmg of the first day of the mtervIews when they determmed that the quesTIons would be asked m the followmg sequence, Ms. MacNeil, Mr LeIgh and Mr Scott, m that order Mr Scott brought the candIdates mto the room and mtroduced them to the panel members. Mr Scott had very httle recollectIon ofms sconng of the queSTIons. He could only assume from lookmg at the check marks and notes made on hIS questIOn forms how he amved at the totals he dId. In some cases there were SIX check marks and SIX pomts allotted and for other quesTIons there were SIX check marks and seven pomts, whIch he could not explam. In some cases he would make a check mark Immediately when the answers were gIven m other cases he marked the form after the candIdate had left the room. After each candidate's mtervIew the three panel members discussed theIr results and, because Ms. MacNeil did not have a background m retaIl, occasIOnally Mr LeIgh or Mr Scott explamed theIr reasons for havmg gIven pomts m certam areas. They discussed the differences m the pomts they had awarded m an effort to arnve at a consensus, or at least an agreement that was close enough to be consIdered a consensus He was asked how a candIdate could be expected to get 10 pomts when there 15 were only 8 selected answers. His response was that he would have been able to gIve 10 answers WIthout any problem and that what they were lookIng for was an understandmg about what a customer would reqUIre to be saTIsfied WIth the servIce He pomted out that, while one of the questIOns was enTItled "Inventory Management" It actually had httle to do WIth mventory management but had everythmg to do WIth how to get along WIth fellow workers and subordmates. The questIOn was desIgned to determme whether an employee could funcTIon as a team member All of the quesTIons, m lns VIew related to the actual Job to be done by focussmg on the vanous steps one would take to deal WIth a customer or to open a store or to deal WIth mventory All of the candidates should have had no difficulty m provIding enough answers to aclneve the maXImum pomts allotted. In fact, according to Mr Scott, many of the answers should have been "second nature" to the candIdates. Mr Scott agreed that most of the major Job funcTIons of a casual and permanent CSR are the same but that, m the larger stores, casual employees would not be placed m charge. Those Job assIgnments are most often gIven to the most seruor permanent full-TIme employee or permanent part-TIme employee. Even some Juruor full-TIme employees are never placed m charge of the larger stores. Some of the more complex tasks would also not be done by a casual employee For example, a full mventory forecast would not be entrusted to very many part tIme employees and, m fact, Mr Scott saId he would do most of It lnmself If he were the manager of the store. "Runmng a slnft" reqUIres a full understanding of all of the responsibihTIes of a slnft and the seruonty reqUIrements m the collecTIve agreement dictate that It be assIgned to full-TIme employees m the larger stores. Schedulmg would only be assIgned to the most seruor employee, usually 16 the AssIstant Manager In a Cor D store, a casual could be an assIstant manager and would be expected to perform all of those funcnons, but, m an A store and even some B stores, that would be unlikely He agreed that It was ennrely possible that a casual employee from a D or C store could have more expenence than a full nme employee m an A or B store With the excepnon of the more complex tasks, Mr Scott agreed that a casual CSR would have done most of the dunes of a full nme CSR. Dunng the mtervIew no mqumes were made as to where the applIcants had worked m the past. It was suggested to Mr Scott that some of the candIdates felt that he was mattentIve and even bored by the process. He explamed that m the last Job compentIOn he was thought to be too mnmIdanng and that perhaps he over-compensated tlns nme. He also explamed that some people were very nervous and stanng at them IS more of a dIsadvantage. He said he may have seemed mattennve but he was not bored. While no resumes were sought, Mr Scott asked each candidate whether they wanted to go back to any quesnon and whether there was anythmg they wanted to add. That was theIr opportunIty to raise any Issues not already canvassed. He agreed With Ms. MacNeil's opIllion that any qual1flcanons beyond those sought m the Job posnng were not relevant so that an addInonal product knowledge level would have been of no added value Mr Scott agreed that he tended to be a generous marker m performance appraisals and also agreed wIth the suggesnon that an employee who had receIved sansfactory performance appraisals should have receIved a passmg grade m the converSIOn. He acknowledged that some of the candidates who worked 17 m ms store had asked mm about the compeTITIon. He told them what the settIng would be like and suggested that they should not assume that the person askIng the quesTIon would know what they know He advIsed them there would be no penalty attached to answenng more and that If a candIdate was not sure, It was better to gIve too much mformaTIon than not enough. He was also contacted by employees m other stores and gave them the same explanatIOn. He advIsed them to gIve complete answers and that anythmg they needed to know would be found m the vanous manuals. He did not see the actual queSTIons until the Monday mornmg of the mtervIews so he could not gIve them any specIfic directIon. All of the stores have the same manuals and traImng books so that each candidate would have the equal access to them. For example, he advIsed them to reVIew the SMAART Program (wmch stands for StrategIc Management of Age, Alcohol and Related Trouble) and the secunty procedures. He saId the same tmng to everyone who called mm, not Just ms own s1:aff, and he was advIsed that other managers had gIven theIr employees sImilar advIce. He was asked what was so excepTIonal about Mr Grechos mtervIew and P Aos to warrant a score of 73% He responded that Mr Grech gave almost textbook answers to the queSTIons. He had taken matenal home every mght and asked Mr Scott what else he could do He followed up on every suggestIOn Mr Scott gave mm. Mr Scott tesTIfied that after the mtervIew he and Mr LeIgh were dIsappomted With the results of some of the candIdates. Some employees he had thought were very capable and had receIved good performance 18 appraIsals did not do very well at the mtervIew Some employees who he beheved to be margmal m theIr work performance did very well on the mtervIews. He attributed thIS anomaly to a "bad day" Mr Gary LeIgh was the tlnrd member on the mtervIew panel. He has been an A store manager m MissIssauga for the last ten years. His ImmedIate supervIsor IS also Bob Woon. He began as a CSR m 1973 and had worked as a bookkeeper clerk and assIstant manager until hIS appomtment to ills current pOSITIOn m MissIssauga. He has sat on mtervIew commIttees over the years, mcluding those for pOSITIOnS as store manager and distnct manager He has been a panel member a number of tImes consIdenng the illnng of new casuals or casual promoTIons to full TIme CSR pOSITIOns. He receIved the regIOnal mtervIew commIttee traImng that Mr Scott described earher He was aware that there were a number of vacanCIes but had no mvolvement m the preparaTIons for the mtervIews. He also knew some of the candidates some worked m ills store, some he knew casually from workmg at the LCBO and others he knew personally All of the quesTIons, m ills VIew were relevant to the pOSITIOn of CSR. The secunty procedures were reqUIred as a result of "the world we hve Ill." In addiTIon, employees must be rehable, show ImtIaTIVe, be physIcally able to handle the J ob have a general knowledge of product management and be aware of the SMAART Program, the Customer ServIce Excellence Program willch sets out the standards that the LCBO hopes to acilleve and "That's the Spmt" a tutored senes of courses to teach responsibihTIes relaTIng to the Company's goals. Mr LeIgh was asked by Mr W oon to be the chaIr of the mtervIew panel but he did not meet With the other 19 panel members until about 45 mmutes before the first mtervIew He was mvolved m selec1lng the quesTIons from a predetermmed set of quesTIons provIded to hIm and chose those that he felt were relevant to the Job of a customer servIce representatIve They are part of a matnx m the traImng package mtended to standardIze sconng and are used as a gUIde dunng trammg. The quesTIons were all dIrected at an employee's knowledge With respect to the product and how to satIsfy customers. A CSR must know how a product gets mto the store for sale, what dIsplays are most effecTIve for customer appreCiatIOn, aspects of secunty relaTIng to loss prevenTIon, shophftmg, stealmg and the handhng of cash. The Company takes a very firm approach to socIal responsibIhty and expects CSR's to understand the legIslaTIon and to know how to apply the SMAART Program wIth respect to the appropnate handhng of customers. In hIs VIew an expenenced CSR should have been able to answer all of the quesTIons m a manner that would reflect theIr expenence and knowledge. His role m the selec1lon process was hmIted to the mteMew His opImon was not sought WIth respect to any candidate and he was provIded With the hst of successful candidates once they had been approved. Mr LeIgh has been mvolved mother mtervIews and agreed that the process usually mvolves a reVIew of an apphcant's preVIOUS retail expenence, customer servIce and mventory knowledge. As well, consIderatIOn would normally be gIven to the resumes, apphcaTIon letters and references. The mtervIew process would be sImilar to the one utihzed m thIs case. In the mstant case he agreed that there was no opportumty for the apphcants to discuss theIr specIfic expenence but that, m any event, It would not have mattered m the sconng. He dId not agree that the mam aspects of the CSR pOSITIOn are performed by 20 casuals because they do not always get the opportumty m the urban and large volume stores to be assIgned that work. He conceded that proper trammg would ensure that everyone had been exposed to and was aware of the proper procedure The mtervIew was mtended to estabhsh whether the partIcular apphcants to tlns Job were qualIfIed and competent to assume the full tJme positIOn. Mr LeIgh rejected the suggesnon that they were lookIng for a "supenor" candidate and suggested that they were lookIng for the best and most expenenced candidate, especIally consIdenng that all of the candidates were mImmally qualIfied to perform the work. It was ills eVIdence that the mtervIew process for promonng casuals to full nme posInons has been evolvmg. At one tIme only semonty was consIdered. Later other factors were taken mto account but more weIght was still accorded to semonty Presently only If the candidates are relanvely equal does semonty factor mto the decIsIon. Mr Bob W oon has been workIng for the LeBO smce 1969 and for the past 7 1/2 years has been DIstnct Manager m MissIssauga and Brampton. His responsibihnes mvolve customer servIce, merchandismg, budget and facihnes management m 21 stores m ills area. Mr Woon had seen the hst of candidates, was aware of the process and was responsible for appomtmg Mr LeIgh and Mr Scott to the mtervIew commIttee He chose Mr LeIgh because he had been through the onentanon program and had partIcIpated m the selectIOn of numerous casualillres. Mr Scott was a manager of an A store who had agam gone through the onentanon and traImng and partIcIpated m preVIous mtervIews. He had confidence and trust 21 m theIr Judgment. He agreed that all of the candIdates were qualIfied and able to do a customer servIce representatIve's Job but suggested that they mIght not have been exposed to all aspects of the Job He testIfied that, m past competItIOns, commIttees had regard for an applIcant's resume, current and past expenence, educatIOn, personal references, current Job knowledge and mtervIew In tlns case no resumes or references were sought. Although great weIght was allotted to preVIOUS performance appraisals, he conceded that managers are not consIstent from store to store and that some of them were more generous markers than others. Mr Wayne Zachar IS the DIrector of Employee RelaTIons and IDS dUTIes wItlnn the Human Resources department mclude responsibilIty for negotIaTIng the collectIve agreement between these partIes, the gnevance and arbItraTIOn procedure, health and safety Issues and any other matters ansmg between the Dmon and the LCBO He was mvolved m the decIsIon to change the process for Job competITIons mvolvmg casual employees. The permanent vacancy reVIew m tlns case, and no doubt m the future, was gomg to result m numerous vacanCIes. The LCBO wanted a more consIstent provmce-WIde process that would be fair to all concerned rather than conTInumg WIth the varymg pracTIces m the different regIOns. The LCBO decIded that a procedure wIDch would allow them to determme relaTIve equalIty cntena and to apply those cntena m a consIstent manner was reqUIred. He revIewed the draft documents for the mtervIews and approved the weIghTIng formula for the performance appraisals. He conceded that pOSITIVe comments m those appraisals were not gIven any weIght. They did not ask for resumes m tlns case because they felt that theIr mclusIOn would have been more an evaluatIOn of how someone could prepare a resume rather than 22 the content of the resume He also decIded how much weIght should be allocated to the mtervIew and performance appraIsal and determmed that more weIght should be gIven to the mtervIew because they had more control of It than the subJecnve element of the performance appraIsals. He took mto account that some managers were more generous than others and that personahty COnflIcts could be reflected m the performance appraIsals. For those reasons he chose to place more weIght on the mtervIews and less on the performance appraIsals. He also decIded, from prevIous GSB decIsIons that the bench mark for relanve equahty should be a 20% spread but that 50% was the lowest standard that they would accept m tills competItIOn. The illghest mark acilleved m the process was 73% and so apphcants between 73% and 53% would be consIdered acceptable. Employees achIevmg the hIghest marks wItilln that range were offered the fullnme CSRJobs Mr Zachar tesnfied that after the mclusIOn of ArtIcle 31 4 mto the CollectIve Agreement apprmomately 80 fullnme posInons were created across the provmce. There were more than 100 casual employees who had worked more than 1600 hours. His goal was to estabhsh a process to evaluate relanve equahty m a faIr manner He demed that they were attempnng to reduce the matter to a mathemancal formula and stated that they worked very hard to devIse a concept or framework With substance. Although there IS an element of mathemancs m the converSIOn, there IS still a quahtanve assessment. Before thIs new process was developed, there had been vananon across the provmce m the awarding of vacanCIes. In some mstances they were awarded to a permanent part nme employees With lll1mmum qualIficanons but the most semonty The central regIon always had a more balanced approach while the northern regIon, m ills VIew was more 23 "extreme" In the central regIOn, a casual employee wantmg to move to permanent status had been evaluated on the basIs ofllls/her performance appraIsals, attendance and discIphne records. Assummg that nothmg negaTIve surfaced m that reVIew the Job would be awarded on the basIs of semonty except m excepTIonal cases. The Job compeTITIon described gave nse to several gnevances, five of whIch are before me Mr Antomo Netta has been workmg at the LCBO smce June of 1988 and has a semonty date of June 21 1990 He described hImself as a loyal, hard-workmg employee With no discIphne. He has always shown an mterest m Improvmg hImself and has all of the qualIficaTIons hsted m the Job pOSTIng. In fact, he has Product Knowledge 3 and achIeved more than 90% m all of them. He IS presently workmg at the distribuTIon centre but has worked m retail stores m the past. He had worked WIth both Mr Scott and Mr LeIgh as a casual employee. Itahan IS hIs first language but he also speaks EnglIsh and French, whIch he beheves IS an asset that should have been consIdered dunng the compeTITIon. Although hIs dUTIes at the warehouse are different from those m the retail outlets, he nevertheless does deal With the pubhc. The converSIOn of hIs performance appraIsals resulted m a score of 19.2%, even though he had never been told hIs performance was less than saTIsfactory One appraIsal was dated September 1996 He receIved a ratmg of 3 or emeets reqUIrementse m all of the categones except two, whIch were not apphcable (inventory management and merchandIsmg) The Comments sectIOn stated as follows -Mr Netta works well wIth httle supervIsIOn -he IS 111111gh demand at other stores 111 our area when not scheduled to work here -shows a keen 111terest 111 learmng about the operatIon -always wilhng to work 111 other stores when needed 24 The other appraisal was dated September 1994 In It Mr Netta was rated a three m five categones and two m two categones. Three means -consIstently meets job reqUIrements- and two means -above average performance- Although Mr Netta did not necessarily agree WIth the raTIng he receIved, he nevertheless sIgned both PA-s wIthout objecTIon. Mr Netta scored 24.2 on the mtervIew He was gIven credIt for 20 out of 30 pomts for the customer servIce questIOn, 9 out of25 for Inventory Management, 4 out of 15 for Loss PreventIOn and Secunty 5 out of 20 for Merchandismg and 3 out of 10 for SocIal Responsibihty His total score was only 43% and he was not offered a pOSITIOn, even though he IS seventh on the semonty hst. He had prepared a resume settIng out ills employment illstory ills quahficaTIons, ills strengths, speCIal skills and ills educaTIon. He was not asked for the resume and did not offer It to the panel dunng hIS mtervIew Mr Les Marozsan has been With the LCBO for eleven years and has a semonty date of July 1991 Dunng that TIme he has acqUIred a four year economICS degree from McMaster UmversIty and a two year busmess admmIstraTIOn certIficate from Shendan College Dunng ills TIme at the LCBO he also worked at other jobs, such as a bartender floonng mstaller and financIal planner With Sun LIfe. In ills dUTIes as a casual CSR he ran sillfts and was responsible for payroll. He said It was unusual for a casual CSR to be assIgned responsibihty for office or mventory management but ills manager Mr Willtehead, had confidence m ills abihTIes. He has adjusted targets and mventory levels and been responsible for specIal orders. He has all three Product Knowledge levels and attamed a perfect score m the first two He also brought a resume to 25 the mtervIew but was not asked for It. He said he dId not dISCUSS the extra dunes he has performed because, m ills VIew there was no opportumty to do so He was gIven a ranng of 25 for the mtervIew He did not know m advance of the mtervIew what would be expected of illm and he thought he had answered the quesnons well. He said Mr Scott looked hke he was sleepmg and asked hIS questIOns as If he did not care about the answers. Mr Marozsan found the entIre process unnervmg and felt he deserved better treatment. He receIved, at best, 12 out of 30 for Customer ServIce, 10 out of 25 for Inventory Management, 9 out of 20 for Merchandismg, 2 out of 15 for Loss Prevennon and 10 out of 10 for SocIal Responsibihty His performance appraisals were gIven a numencal value of 26 1 The first P A was dated September 1995 He was rated at a 2 level for Customer ServIce, Stock Handhng and Merchandismg. He was rated a 3 at Inventory Management, Knowledge of OperatIOn and Work Area, CommumcatIOns/relanonshIp Safety and ProtectIOn of LCBO Assets, Cost EfficIency Appearance and Punctuahty and Attendance There was one addinonal comment: - W orkmg With Les IS a pleasure and I hope one day he has the chance to work fullnme- The second P A was dated September 1996 The marks he receIved were sImIlar to the ones m the 1995 P A except that thIs nme he was gIven a 3 for MerchandIsmg, mstead of a two The only comment was -good worker self starter- His total mark was 51 %, two percent lower than reqUIred. Mr Bruce ParkIn has been With the LCBO smce 1998 and has worked at the same store smce 1989 under Mr Harold Craven. His semonty date IS December 1991 He described ills dunes as bemg sImIlar to 26 those of a full tIme CSR pOSITIOn. He has been responsible for cash, mventory management, target adjustments and runrung a slnft. Whenever there IS no full TIme CSR on duty Mr ParkIn assumes theIr responsibIhTIes. He receIved 21 1 for hIS PA-s. The first one was dated September 1995/96 and hIS performance ratmg was a 3 or -Meets ReqUIrements- He was gIven an outstandmg mark (1) for Merchandismg, two for Customer ServIce and Stock Handhng, and 3 for Knowledge of OperatIOn and Work Area, CommumcaTIons/RelatIOnslnps, Safety and ProtectIOn of LCBO Assets, Appearance and PunctualIty and Attendance Under comments It was stated -Bruce shows keen mterest m promoTIons and display Wilhng to work anytIme and will change slnft to help store when m need- The other P A for 1994/95 was not as favourable He was gIven a 3 m all categones and the comments were -Bruce IS a good employee Willmg to work anytIme. Bruce wIll change slnfts to help the store when m need- Mr ParkIn vOIced lns dissaTIsfactIon With the P A-s to lns Manager at the TIme and was told that no one paId any attentIOn to them and that they were Just for the file He was told they would not be consIdered for any other purpose Mr ParkIn was gIven 17 8 for lns mtervIew He receIved 7 out of 10 pomts for Customer ServIce, 9 out of 25 for Inventory Management, 5 out of 20 for Merchandismg, 3 out of 15 for Loss PreventIOn and Secunty and 6 out of 10 for SocIal Responsibihty He was very uncomfortable He had to shout across the room and the atmosphere was very cold. He dId not bnng a resume and he was not asked any queSTIons except for the preselected ones asked of all the apphcants. Mr Scott seemed to be totally dismterested and was a distractIon. He did not look at Mr ParkIn and held lns head m lns hands the enTIre 27 TIme Mr ParkIn had asked hIS manager about the mtervIews and had been told to .look It up. m the manual Mr ParkIn thought he had done well at the mtervIew and was surpnsed by the results. He was not concerned because he thought hIS work record would speak for ItSelf. Ms. Rosemane Noms has been employed by the LCBO smce 1990 and has a senIonty date of Apnl5 1992 Before that she worked for 12 years at a DOmInIOn grocery store She works at the vmtage store and her responsibihTIes are somewhat different as a result. She had completed all Product Knowledge levels before the mtervIew for tills Job cOmpeTItIOn. Her manager John TaIt, completed her P A.s, whIch he treated as .somewhat of a Joke. His practIce was to fill m the appropnate spaces, call the employee mto the office, read the P A to them and have them SIgn It. No one took them senously and, If Ms. Noms had known they would be used mJob compeTITIons, she would have paId more attentIOn to the contents. For example, she worked every ShIft she was offered and should have receIved a 1 for punctuahty and attendance Instead she was gIven a 2, willch she accepted. Her overall raTIng for her two P A.s was 27 The first one was done m 1996 and gave a general raTIng of 3 or .consIstently meets Job reqUIrements. The format was shghtly different from the one used for the other gnevors. In her case there were three columns, one for a raTIng from one to five, a second settIng out the area covered and the tlnrd for comments. That portIon of the P A.s IS set out below The bolded number on the left IS the score she was gIven. RATING AREA COMMENTS AND EXAMPLES 12345 A. Knows and follows work procedures Rosemane has read operaTIng manual and regulaTIons and follows procedures well 12345 B Comphes WIth safety and secunty rules Rosemane observes all secunty regs 28 and regulanons and works m a safe manner 12345 C Meets customer servIce standards Rosemane has attamed Level 2 of Product Knowledge and assIsts customers m a fuendly manner 12345 D Commumcates mformanon and Ideas Rosemane commumcates clearly to clearly to supervIsors, staff and customers peers, mgr and customers often helpmg staff wIth Import procedures 12345 E. AchIeves prodUctIVIty levels Rosemane works efficIently and well at Jobs assIgned 12345 F Performs Job functIOns accurately Rosemane IS very competent at all Jobs assIgned but IS a very accurate cashIer 12345 G Demonstrates reasonable punctuahty Rosemane IS rarely late and seldom has and attendance records m accordance WIth mIssed assIgned shIfts agreed schedules of work Under the headmg of Summary comments was wntten - Rosemane IS a fuendly efficIent and accurate worker- The 1995 P A was, m some respects, better than the one set out above RATING AREA COMMENTS AND EXAMPLES 12345 A. Knows and follows work procedures Rosemane IS famihar With and follows and regulanons procedures well 12345 B Comphes WIth safety and secunty rules Rosemane works m a safe manner and and regulanons observes all secunty rules 12345 C Meets customer servIce standards Rosemane IS pleasant & fnendly to our customers. She feels more confident With mcreased knowledge. She Will complete PKII by Oct.30 12345 D Commumcates mformanon and Ideas Rosemane commumcates well and 29 clearly to supervIsors, staff and customers elucIdates Ideas clearly 12345 E. AchIeves produc11vIty levels Rosemane works very efficIently m pncmg releases usually on her own. Fimshes m 1/2nme expected 12345 F Performs Job functIOns accurately Rosemane IS a very accurate cashIer and rarely makes mIstakes m pncmg 12345 G Demonstrates reasonable punctuahty Rosemane IS never late and never has and attendance records m accordance WIth mIssed any assIgned hour agreed schedules of work In the Summary Comment slot was stated · Rosemane IS a good worker who has also been learnmg advanced office procedures. For the mtervIew Ms Noms was rated at 16.2, for an overall ratmg of 43%, whIch was not enough to warrant aJob offer She scored 12 out of30 for Customer ServIce, 6 out of 25 for Inventory Management, 4 out of 20 for MerchandIsmg, 3 out of 15 for Loss Prevennon and Secunty and 2 out of 10 for SocIal Responsibihty She had never partIcIpated m an mtervIew before and found the expenence to be cold and mnmIdanng. The room was very large and cold. Mr Scott did not make eye contact With her and did not seem mterested m her answers. She thought they would be mterested m short, pomted answers and discovered later that they were lookIng for more detail She advIsed the panel that It was different m a vmtage store but they dId not ask her for an explanatIOn of those dIfferences. For example, there IS no rotanon of mventory m a vmtage store As well, she has never had to deal With underage or mtoxIcated customers m her store. She has smce completed the SMAART program and IS aware of the responsibihnes of a CSR m that regard. 30 As stated prevIOusly the fifth gnevor Ms. Margaret Babcock, was not at the heanng and the partIes are agreed that, If any adjustments are made to her semonty by the WSIB we will deal WIth her gnevance at a later date, If necessary ARGUMENT Ms. Mitchell, counsel for the Umon, submItted that all of the gnevors were performmg the dunes of a customer servIce representatIve sansfactorily The dutIes they were performmg on a daily basIs were the very dunes they would have had to perform had they been successful m the Job compentIOn. They had already passed the first screenmg and there were no neganve comments WIth respect to theIr attendance and/or discIphne records. While the Employer IS free to mtroduce an mtervIew process If It chooses, It begs the quesnon why there was any need to change the past practIce There IS no eVIdence that the past pracnce was not effecnve. The sconng process used to convert the gnevors. performance appraisals resulted m some gnevors faihng to meet the threshold, notwIthstanding the fact that they had actually performed the Job dunes for a number of years. It IS ObVIOUS that the sconng scheme was not connected to actual Job performance and, therefore, was sImply wrong. The Umon has several ObjectIOns to the process. First, It takes the posInon that ArtIcle 34 1 was apphed too narrowly The LeBO did not take mto account all of the relevant mformatIOn It had before It. That relevant mformanon should have mcluded the supervIsor's comments on the gnevor's performance, a resume of theIr past expenence and theIr ennre personnel file to determme where they had worked m the past and 31 any addiTIonal quahficaTIons they mIght have possessed that did not emerge m the mtervIew The process used by the LCBO dId not take mto account saTIsfactory performance on the actual Job The mtervIews did not assess quahficaTIons but rather were an artIficIal weeding out of apphcants. The 60% allotted to the mtervIew IS proof of that. Clearly the gnevors were marked not on theIr performance but rather on how well they could handle an mtervIew The mathemaTIcal approach to the performance appraIsals was mappropnate and mcorrect. The documents were not desIgned to be reduced to numbers. They have subjecTIve comments m them that m most mstances would have been beneficIal to the gnevors, but whIch were Ignored. NeIther did the Employer take mto account the fact that some managers graded more favourably than others, resulTIng m a hIgher mark for some and a lower mark for others. Where there were mconsIstencIes between the mark gIven and the comments made on the performance appraIsal, no adjustments were made to compensate It was also argued that companng all candidates agaInst a "ghost" candidate mstead of applymg the compansons to the successful candIdates, was mappropnate and mcorrect. Mr Grech scored 73% and all of the candidates were compared agaInst hIS total. In a normal process Mr Grech would have competed for a Job and, once he had been offered a Job would have stepped aSIde. The other candidates would have been compared as agaInst the remaImng candidates. Because Mr Grech did not have enough semonty to be awarded a Job the LCBO nevertheless used hIm as the bench mark for all other candidates. As a result he was the threshold all sIxteen candIdates had to meet every tIme 32 The Umon also asserted that there was an apprehensIOn of bIas m the selecTIon of the panel and m ItS operaTIon. For example, a decIsIon was made to WaIve the discIplme on one apphcant's file, notwIthstanding the Employer's clear assertIon that discIphne would ehmmate a candIdate In additIOn, two of the panel members had been managers of stores where some of the applIcants had worked m the past or were presently workmg. As a result of that personal knowledge, some candidates were gIven mstrucTIons about the mtervIew and the questIOns that others were not. Although those mstruCTIons were general m nature, nevertheless, they pomted those candidates to the manuals and mstructed them to gIve complete answers to all of the quesTIons, wlnch gave them an edge at the mtervIew Mr LeIgh saId that Scott Grech had gIven an excepTIonal mtervIew wlnch IS not surpnsmg gIven that he had spoken to Mr Scott about the mtervIew process many TImes and had been gIven some dIrectIOn. The Umon also argued that the LCBO was protected m tlns case by the fact that there IS a SIX month probaTIonary penod when an employee IS promoted to a new pOSITIOn. If the candidates had not performed saTIsfactorily m the full TIme pOSITIOn they could have been returned to theIr casual status. The need for an mtervIew process at all IS quesTIonable m the CIrcumstances. For example, Mr Netta has been WIth the LCBO for mne years, has passed all three product knowledge courses successfully has worked at the warehouse and served lIcensees, pIcked orders and worked at retail stores. He has even worked With Mr Scott and Mr LeIgh occasIOnally He speaks Enghsh, French and Itahan, assets that the LCBO acknowledged would be beneficIal. He has had more than saTIsfactory PAos and yet he scored 19.2 out 33 of 40 on the appraIsal and 24 out of 60 on the mtervIew for a total of 43%. Mr Marozsan has a semonty date of 1991 a degree m economICS and busmess admImstranon, and has been performmg the Idenncal dunes of a full nme CSR. He has run slufts, done payroll and adjusted targets and mventory He has traIned new casual employees, a process that was not ehcIted dunng the mtervIew He has Product Knowledge 1,2 and 3 and yet only scored 51 % through the mtervIews and performance appraIsals. Mr Parkm has a semonty date of 1991 and has worked for the LCBO smce 1998 As a casual CSR he has done all of the dunes of the Job mcludmg mventory management, responsibihty for the Image book orders and target adjustments. He scored 39% m total, only 17 8% out of 60 for the mtervIew He has Product Knowledge 1,2 and 3 and IS clearly quahfied to do the work. Ms. Noms has been With the LCBO smce 1990 and has a semonty date of 1992. She has worked at the vmtage store, completed all three levels of product knowledge With honours, has pnor expenence as a clerk at DomImon, has addItIOnal product knowledge ofvmtage wmes and yet scored 43% m the process. Even Ms. MacNeIl acknowledged that she had concerns about the relevance of the mtervIew when above average employees like Mr Netta and Mr Parkm scored less than a passmg grade. She agreed It was a test more of theIr abihty to handle an mtervIew than of theIr abihnes as a CSR. All of the LCBO's Witnesses agreed that the casual CSR's did essennally the same dunes as a full nme CSR, With some excepnons. In some stores a casual CSR could have had more expenence than a full nme CSR m a larger store, depending on the number of staff available and the level of responsibihty desIgnated to lum or her a CSR who had run slufts and had assumed addinonal responsibihty for the operanon of the store 34 got no extra credIt because of the manner of the mtervIew and the performance appraisal converSIOn. In summary the Dmon's first pOSITIOn was that there was no need for an mtervIew m the first mstance. The casual employees had performed the dUTIes of a full TIme CSR for a sIgmficant penod of TIme. They were all quahfied to do the work and there was no need for them to compete wIth each other for a posItIOn. In the alternaTIve, If tlns Board should find that the Employer was enTItled to mtroduce an mtervIew process, the Dmon asserted that the weIghtmg of 60% for the mtervIew was mappropnate and was mtended to evaluate the gnevors. abihty to handle themselves dunng an mtervIew rather than measure theIr competency to perform the work. In addItIOn, the performance appraisals were not desIgned to be reduced to a mathemaTIcal formula and should have been used as a subjectIve assessment for relaTIve equahty The fact that the LCBO Ignored relevant comments m those performance appraisals was mappropnate and unfair The panel members did not consIder relevant factors such as the opImon of the store managers who actually completed the P A-s and the favourable comments m theIr performance appraisal AddITIonally there was an apprehensIOn of bIas wlnch m and of Itself should be sufficIent to set aSIde the competITIOn. For example, store 458 had three apphcants who all receIved above average sconng dunng the mtervIew All of them had worked under Mr LeIgh and Mr Scott. One of them scored 29.9 the other 24 8 out of 40 on theIr performance appraisal converSIOn. It appears that they had an advantage over the others for those reasons. In fact, Mr Scott Grech was gIven matenals to study at home and after he had 35 read them was gIven addiuonal matenals. He clearly had an advantage over the others. One apphcant was allowed to compete even though he had discIphne on ms file, wmch should have ehmmated mm at the first screenmg. Finally IS the Issue of the "ghost" candidate The gnevors should have been compared to someone who actually got the Job not someone who was never m the runrung. a true companson would have been to compare Mr Netta, for example, to somebody WIth less semonty than he who actually was offered a Job Mr Marozsan passed the mImmum threshold, but that was not enough when compared to Scott Grech. The Dmon asked that the gnevors be awarded the posItIOn of CSR With retroactIve pay and benefits. In support of ItS posIuon, the Dmon rehed on the followmg cases. Re Greater Niagara General Hospital and Ontario Nurses' Association (1992), 60 L.AC (4th) 289 (Devhn) Re Currans and Chaput and Liquor Control Board and Liquor License Board of Ontario (1998), GSB #0923/97 and 0924/97 (Knopf) Re Hall/Powers and Ministry of Correctional Services (1990), GSB #716/89 and 866/89 (Gorsky) Re Skagen and Glemnitz and Ministry of Attorney General (1998) GSB #1934/87 and 1936/87 (Spnngate) Re Bechard and Liquor Control Board of Ontario (1998) GSB #0900/97 (Watters); Re Great Atlantic and Pacific Company of Canada Ltd. and Canadian Food and Allied Workers Union, Locals 175 and 633 (1979), 21 L.AC (2d) 444 (Weathenll) Re McIntyre and Ministry of Community and Social Services (1987), GSB #0141/85 (Knopf) RE Poole and ministry of Health (1988) GSB#2508/87 and Re Eaton and Ministry of Transportation 36 and Communications (1987), GSB #0629/85 (Knopf) Ms. Renton, counsel for the LCBO began by remmding the Board that the mtervIew process was mtroduced by the LCBO m order to be fair to Its employees. The past practIce had differed throughout the provmce and thIS was the first TIme that tlns form of Job compeTITIon was bemg used m an effort to provIde a standardized provmcIal Job pOSTIng procedure Even If the Job cOmpeTItIOn clause had mvolved a threshold mstead of relaTIve equahty questIOn, the LCBO still has the nght to mtroduce an mtervIew process If It chooses m order to ensure that the candIdates are bemg compared properly All of the candIdates knew before they entered the mtervIew room that was to be the process and they should not have been surpnsed at the mtervIew The LCBO decIded to use the last two performance appraisals on file, whIch was the fairest way to proceed. Some apphcant-s had more recent P A-s on file than others, but each candidate had the benefit of havmg two performance appraisals consIdered. When the performance appraisals were converted to a number the same process was used for all apphcants and the sconng was done before the mtervIew so that there could be no claim ofbms. There IS no eVIdence that the results were mcorrect. The performance appraisals mdIcate how an employee was rated as a casual CSR, but the sconng was done to convert that assessment for evaluatIOn for a full TIme pOSITIOn. That explams why some gnevors like Mr Netta scored notlnng m some areas. The pOSITIOn was for a retail CSR and not for the depot, warehouse or vmtage store The gnevors have, m the past, gneved performance appraisals and Mr Zachar specIfically Said that 37 gnevors have a nght to gneve an unsatIsfactory performance appraisal As well, employees have an opportunIty to wnte theIr ObjectIOns on the performance appraisals. The candIdates were advIsed on the postmg that theIr past performance appraisals would be revIewed so It cannot be said that they were unaware of the use of those appraisals. The LCBO asserted that allottmg 40% for the performance appraisals was fair The mtervIew was not the only factor to be consIdered, but m hght of the fact that all these gnevors had performed some of the dunes of a CSR, It was reasonable that more weIght be gIven to the mtervIew TheIr personnel files were canvassed With regard to theIr attendance and dIscIphne records. There IS no eVIdence to show that addinonal factors from those files should have been consIdered. The UnIon has stated that the mtervIew process was flawed because the supervIsor's comments were not consIdered. In fact, the sconng of the performance appraisals reflected the supervIsor's comments. The UnIon has failed to estabhsh that the results would have been different had those factors been taken mto consIderatIOn. The UnIon has taken Issue WIth the fact that one apphcant was gIven an mtervIew despIte the fact that he had discIphne on ills file The LCBO contended that, If that apphcant had been denIed an mtervIew solely on those grounds, the LCBO would have been before tills Board on a different gnevance In any event, Mr W oon's eVIdence was that he waived the discIplme because he thought that the apphcant had benefited from the expenence. The repnmand was eIghteen months old and there had been no further mCIdents. The process was not to automancally ehmmate somebody because of a poor attendance record or discIphne 38 but to consIder each case on ItS own ments That's what Mr Woon dId. The Dmon has suggested that there was bias m the mtervIew because the apphcant whose discIphne was waived had worked m Mr Scott's store Some of the apphcants who had worked m Mr Scott and Mr LeIgh's store were ehmmated from the process at the outset. There was no bias m the selecTIon of candIdates to be mtervIewed or m the actual mtervIews themselves. The Dmon has suggested that the queSTIons asked were not relevant to the Job Both of the store managers on the mtervIew commIttee tesTIfied that the queSTIons were, m fact, directly related to the Job of a CSR and that they would have expected a CSR With expenence to have been able to answer all of them. The quesTIons were very broad and were mtended to ilhcIt numerous responses, all of wlnch would have been credIted to the candIdate The value gIven to relaTIve equalIty was based on the Falcioni decIsIon (supra), wlnch consIdered the same language at Issue m thIS case That's why Mr Zachar decIded 20% was an appropnate range It was a broad range selected to reflect an entry level full TIme pOSITIOn. Even settIng aSIde the Issue of relaTIve equalIty the fact IS that Mr Netta, Ms. Noms and Mr ParkIn dId not aclneve a 50% result and would not have been offered a Job m any event. Only Mr Marozsan would have quahfied. Ms. Babcock, If her semonty date IS adjusted as a result of the WSIB decIsIon, she would have been entItled to a pOSITIOn and the partIes will be back before tlns Board for dIreCTIOn, If necessary 39 Ms. Renton took the posItIOn that the Umon's mterpretaTIon of ArtIcle 31.3 IS mcorrect. There IS no probaTIonary penod when a casual employee IS promoted to a full TIme pOSITIOn. ArtIcle 21IS modified by ArtIcle 31 4 and does not address the sItuaTIOn of a casual CSR movmg to a full tIme pOSITIOn. The LCBO took the pOSITIOn that If the gnevors succeed m whole or m part, the compeTITIon ought to be rerun. The hst of candidates shows that some employees With more semonty than the gnevors did not gneve a re-runnmg of the compeTITIon IS consIstent WIth GSB Junsprudence and the Lowe and Forest case, (supra) It was said that the cases rehed on by the Umon do not assIst It many matenal way In the Hall decIsIon (supra), the employer only consIdered expenence as 15% of the gnevor's total score and 85% was allotted to the test. That IS not the sItuaTIOn m the mstant case where the percentages were much closer In the Skagen decIsIon, the mcumbents were chosen only on theIr performance at the mtervIew wlnch, again, IS not the case before you. In the McIntyre case, (supra), there was an allegaTIon of an apprehensIOn ofbms. Only the mtervIews were consIdered relevant and no reference or supervIsory checks were done That IS not the case before you. Sllnilarly With the Eaton case, (supra), there IS no eVIdence before you that the panel members treated anyone dIfferently The Umon suggestIOn that the store managers unfairly assIsted some gnevors IS not supported by the eVIdence and IS wIthout ment. Mr Scott was asked about the apphcant's dIscIphne, but It was Mr Woon who made the decIsIon to Waive It and grant lnm an mtervIew 40 With respect to the allegatIOn that Mr LeIgh and Mr Scott assIsted some applIcants and not others, the fact IS that when they were approached, they responded. They dIrected them to the proper manuals but gave them no specIfics. Those manuals were available to all employees. In support of ItS posItIOn the LCBO relIed on the followmg cases Re Laforest and Ministry of Community and Social Services (1989), GSB #1983/87 (Roberts) Re Wayne and Lowe and Ministry of Transportation and Communications (1988), GSB #1147/86 and 1148/86 (Barrett); Re Miller and Liquor Control Board of Ontario (1983), GSB #348/82 (Samuels) Re Saras and Ministry of Labour (1987), GSB #457/85 (Swan) Re Falcioni and Liquor Control Board of Ontario (1993), GSB #2308/91 (Kaplan) Re Woods and Ministry of Transportation (1988), GSB #2253/87 (Watters) Re Bent and Ministry of Transportation (1989), GSB #0031/88 (Knopf) REASONS FOR DECISION In the Wayne and Lowe case (supra), the gnevors were two of twenty applIcants for seven vacanCIes for the pOSITIOn of "Inqwnes SpeCIalIsts" WIth the MimstIy of TransportaTIon and CommumcaTIons. An mtervIew commIttee was set up QuestIOns were asked relaTIng to three mam areas of skill, mterpersonal and commumcaTIon skills, problem solvmg and techmcal skills. Each of them were allotted a value and to that stage m the process there IS no dIspute that the procedure was fair and objecTIve The difficulty occurred after those mtervIews when the scores were reduced by the commIttee members. For example, the gnevor receIved a perfect 20 marks on theIr mterpersonal skills mtervIew sheet, wlnch was later reduced to 12 41 dunng the consensus meeTIng. Once the consensus scores were establIshed, further changes were made, although It was unclear at what stage that occurred. In any event, the gnevor's ongInal score of 372 was reduced to 312 and she went from bemg 6th out of the 20 compeTItors to 10th place. No reference checks were made at that pomt m TIme One candidate was elImmated and the other 7 were offered the vacanCIes. One person refused the job leavmg one vacancy to be filled. Candidates ranked 9 - 13 were WItlnn 10% of each other and so reference checks were made on all of them as a form of a "tIe breaker" They were checked out by one member of the commIttee who looked at the wntten performance appraIsals m the employee's file and spoke WIth theIr supervIsors. DespIte a very favourable performance appraIsal, thIS commIttee member concluded that the gnevor was "unable to retaIn knowledge, msecure, lacks confidence, too much double checkmg, VOIce audio IS poor " The gnevor receIved a score of 30 out of 100 and was cut from the compeTITIon. In consIdenng preVIOUS GSB decIsIons concernmg the cntena for arbItral revIew the Board referred to a 1993 decIsIOn (Marek, GSB # 414/83) and summanzed the junsprudence as follows. It IS hard for thIS Board to understand how thIS could occur m VIew of the repeated direcTIon thIS Board has gIven on the need to consult personnel files and candidates' supervIsors. PartIcularly when one of the candIdates only IS known to the mtervIewers. see, for example, MacLellan and DeGrandis, 506/81 507/81 690/81 and 691/81 wherem the junsprudence IS summanzed at page 25 and 26 The Board concluded that the wntten performance appraIsals dId not JUSTIfy the low scores and, m fact, JusTIfied a consIderably lngher score than the gnevor had receIved. NeIther of the other comlll1ttee members had access to any of the ongmal source matenals m the reference checks and relIed the other commIttee member-s subjecTIve VIews of them. The Board went on to find that the selectIOn process was so 42 fundamentally flawed that a new compeTITIon had to be held WIth all 20 ongInal apphcants for the Job ehgible to apply It should be noted, however that It was the Umon's pOSITIOn that the compeTITIon should be rerun. It dId not ask that the Jobs be dIrectly awarded to the gnevor In the MacIntyre decIsIon (supra), the gnevor apphed for an mcome mamtenance officer posItIOn, wlnch was awarded to another candIdate The Board found that the compeTITIon was conceIved and processed m good faIth. The use of the preset oral and wntten exammaTIons and the mtervIewer's efforts to ensure that the same queSTIons were asked of all candidates m the same order achIeved procedural faIrness, there was no fault m the tests themselves m the way the wntten exammaTIon was presented nor m the way that the scores of the test were calculated. There was, however concern expressed over the fact that there were only two members on the mtervIew commIttee, one of whom had worked for a number of years WIth one of the applIcants and the other who had worked WIth another apphcant. The Board noted that one of the reasons for havmg a selecTIon panel IS to "offset the natural and understandable predISpOSITIOn of one mtervIewer who may be famihar WIth some candIdates WIth more objectIve ImpreSSIOns gaIned by outsIders." It felt however that the selectIOn of the panel members could create a legItImate concern over the abihty of the selecTIon commIttee to be objecTIve It suggested that a thIrd person on the panel mIght have allevIated that concern. The most senous problem, however m the process was the fact that the selectIon commIttee had failed to mvestIgate and consIder all of the candidates. references and personnel files. It referred to earher Board 43 Junsprudence and suggested that It would not have been too cumbersome m tlns case to do a sImilar thorough check. It ordered that the Job cOmpeTItIOn be re-run on COndITIOns. In the Pool case (supra), the gnevor a regIstered nurse, bId for the posted J ob of hospItal educator and was unsuccessful. SIX candidates sublll1tted detailed apphcaTIons and resumes, mcluding the gnevor Five were granted mtervIews and at the mtervIews a senes of quesTIons were asked of each candidate to ilhcIt mformatIOn concernmg theIr quahficaTIons and expenence. The candidates were scored on those answers. The Board emphasIzed that these scores were done "WIthout any regard to the mformatIOn on the apphcaTIon forms or mformaTIon wlnch mIght have been found m personnel files or mformaTIon from the apphcants' supervIsors at the hOSPItal- It noted that It was Mimstry pohcy to base ItS decIsIons m these cIrcumstances enTIrely on the scores at the mtervIew The Board referred to preVIOUS GSB Junsprudence and charactensed the Mimstry's pohcy as "incomprehensible" The Board noted at page 4 There must be a full gathenng of mformatIon concernmg the quahficatIons and abihty of the apphcants. It IS sImph not satIsfacton to conscientiouslv ignore mformatIon as was done here For some reason, the gnevor dId not do well at the mtervIew (we have a great deal of dIfficulty understandmg tins and we will have sometlnng to sa, about tins m a moment.) The three members of the panel were left wIth the ImpreSSIOn that the successful candIdate had better quahficatIons and expenence than the gnevor but a look at theIr apphcatIon fonns would have confirmed that the gnevor was a semor nurse wIth much expenence m the ven matter winch was to be taught to the 800 staff members at the hospItal, while the successful candIdate had Just graduated from nursmg school, and had no expenence what so ever m thIS area. In our VIew the decIsIon of the panel was sImph perverse and tins resulted from ItS profOIDldh flawed procedure The Board m that case went on to explam at great length why they felt that the gnevor was more supenor to the mcumbent. The Board described the mcumbent as a "bnght young woman" who "sImply has vIrtually no expenence as a RegIstered Nurse What IS clear IS that Ms. Tunks knows how to handle an mtervIew " 44 The Board went at page 7 as follows In smmnan we find that the selectIOn process was entIreh madequate The ultImate total rehance on the mtervIew as an mformatIon-gathermg and sconng tool resulted m an assessment of the relative ments of the candIdates whIch had no real basIs m fact. In partIcular the panel failed utterh to see the gnevor as she was, m spIte of the fact that the mformatIon was m ItS hands or readih available The Board went on to award the Job to the gnevor m hght of theIr finding that she was the most quahfied candIdate In the Bent decIsIon (supra), the Board made the followmg observatIOns The Gnevance Settlement Board has often been asked to consIder the nghts and responsibihtIes of the partIes m terms of mtervIews for job competitions. The junspmdence IS well sUlllmanzed m the KuyntJes case, (supra) at page 5 It has been well estabhshed m the Board's junspmdence that the emplover must use a process of decIsIOn-makmg whIch IS desIgned to consIder the relevant quahficatIons and abihty of a candIdate m a competition whIch will ensure that sufficIent relevant mfonnatIon IS adduced before the decIsIOn-makers so that the, are able to make an mformed chOIce (Remark, 149-77 Qumn, 9/78) If the eventual decIsIOn about who gets the job IS to be based on relative quahficatIons and abihtIes, It follows that all steps leadmg up to that decIsIon must also satIsn. the reqmrement that the, lead to vahd and relevant mfonnatIon about quahficatIons and abihtIes bemg brought to the attention of the Selection Board. If the pre-screemng screens out better quahfied candIdates, the eventual decIsIOn cannot help but be faulty Therefore, while there IS clearh no nght to an mtervIew m the Collective Agreement, the nature of the eventual decIsIOn to be made reqUITes that the pre-mtervIew screenmg be done m a comprehensIve and fair manner Another summary of the cntena that have been estabhshed and umversa11y accepted by the GSB IS found m the Marek decIsIon (GSB # 414/83) as follows The junspmdence of tlns Board has estabhshed vanous cntena b, whIch to judge a selection 45 process 1 CandIdates must be evaluated on all the relevant quahficatIons for the Job as set out 111 the PosItIon SpecIficatIon. 2 The varIOUS methods used to assess the candIdates should address these relevant quahficatIons 111 so far as It IS possible For example, 111tervIew questIons and evaluatIon fonus should cover all the quahficatIons. 3 Irrelevant factors should not be consIdered. 4 All the members of the selectIon COnll1l1ttee should reVIew the pers01111el files of all the apphcants. 5 The apphcants' supervIsors should be asked for theIr evaluatIons of the apphcants. 6 InformatIon should be accumulated 111 a svstematIc way concem111g all the apphcants. See Remark, 149/77 ~,9/78 Hoffman, 22/79 Ellsworth et a~ 316/80 Cross, 339/81 In Leshe 126/79 the prnuan basIs on whIch tillS Board ordered a new selectIOn process was the fact that the 111tervIewers knew one of the candIdates, and had rehed on the 111tervIews alone, wIthout aIn recourse to the supervIsors of other caIldIdates nor 111, Leslie had the 111tervIewers referred to the gnevor's personnel file or perfonUaIlCe appraisals. In our VIew tillS conduct alone fatally flaws the selectIon process undertaken b, the 111tervIew panel here It IS hard for tillS Board to understand how tillS could occur 111 VIew of the repeated dIrectIon thIS Board has gIven on the need to consult personnel files and candIdates. supervIsors. PartIcularh when one of the candIdates IS known to the 111tervIewers. see for eXaIuple MacLellan and DeGrandis, 506/81 690/81 and 691/81 where111 the Junsprudence IS sunlluanzed at page 25 and 26 ConsIstent WIth the Board.s Junsprudence, the Job compentIOn In the Instant case must be evaluated agaInst those general pnncIples. The first quesnon raIsed by the Dmon was the need for any compennon consIdenng the fact that all of the candidates had been performIng the actual dunes of the J ob for a sIgmficant penod of nme and that they had all passed the Imnal screemng regarding sansfactory performance appraIsals and discIphne In the past the LCBO had promoted on the basIs of semonty alone and the Dmon contended there was no need to change that pracnce 46 After consIdenng the eVIdence of the LCBO I am saTIsfied that It was not unreasonable for them to reconsIder theIr process after the mclusIOn of the Permanent Vacancy ReVIew m the collecTIve agreement. It became apparent very soon thereafter that It would be faced With numerous new pOSITIOnS that would reqUIre mulTIple Job compeTITIon proceedings. The vanous regIOns had set up theIr own methods for deahng With vacanCIes m the past that resulted m the mconsIstent apphcaTIon of the collecTIve agreement reqUIrements. It was not unreasonable m the CIrcumstances for the LCBO to re-evaluate ItS pohcIes and attempt to deVIse a process that could be apphed m all regIOns to all future vacanCIes With consIstent results. There can be no queSTIon about an employeros nght to determme the methods It will use to evaluate the competence and abIhty of ItS employees. More Will be said about the process adopted m the mstant case. The second Issue raised by the Dmon concerns an apprehensIOn of bias m the selectIOn process. Based on the eVIdence before me I am unable to conclude that actual bIas or the apprehensIOn of bIas has been estabhshed. In the first mstance, the Dmon raised a queSTIon concernmg the Waiver of dIscIphne on one of the apphcantos records dunng the ImTIal screemng. In my VIew the LCBO acted reasonably m not applymg a hard and fast rule about past discIplme and decIding mstead to consIder each case on ItS own ments. The LCBO consIdered the reason for the dIscIphne, the tIme that had elapsed smce the dIscIphne and the apphcantos response to the discIphne and came to the conclusIOn that he should be granted an mtervIew The LCBO followed the Job pOSTIng by makmg a determmaTIon as to whether or not the apphcantos discIplmary record was saTIsfactory It decIded It was. To do otherwIse would have left the LCBO open to complamts from the Dmon on other grounds. 47 The Dmon has also suggested that the selec110n of the mtervIew panel and the ac110ns of some of the panel members raised an apprehensIOn of bIas. Again, the eVIdence does not bear that out. Wlnle It IS true two of the selecTIon panel were or had been managers of some of the apphcants, that does not, m and of ItSelf, prove they were bIased for or against any of them. Indeed, gIven that the subjecTIve comments m the performance appraisals were purposely excluded from the mtervIew panel-s consIderatIOns, there IS no eVIdence that the markmg of the apphcantos answers was affected m any way by a panel memberos personal knowledge of the apphcant. The answers were marked against preset responses and there IS no eVIdence that credIt gIven for any additIOn answers was unwarranted or unreasonable The converSIOn of the performance appraisals was not done by the those panel members and cannot be attacked on those grounds. Finally the Dmon submItted that, because some of the apphcants asked the panel members for assIstance m the mtervIew process, they had an advantage over others. The eVIdence from the panel members mvolved was that, when asked, they directed the apphcants to the vanous manuals m the store. They also gave general mstruCTIons about answenng the quesTIons completely There IS no eVIdence that those dIrectIOns were Improper m the CIrcumstances. The fact that some people had the foresIght to ask for assIstance m advance of the mtervIew should not be held against them. For theIr ImTIaTIVe, they were directed to the vanous sources of mformaTIon that were available to all apphcants. The assIstance they got was general m nature and did not, m my VIew gIve them such an advantage over the others that It gave nse to 48 an apprehensIOn of bias. Further the eVIdence estabhshed that assIstance would have been provIded to any apphcant who asked. I reject the Umonos submIssIons that the queSTIons chosen for the mtervIew were not relevant to the pOSITIOnS at Issue. They all related to the actual Job dutIes or to store mITIatIves or programs that are well known amongst LCBO employees. None of the quesTIons were a surpnse to the apphcants and all were able to answer the quesTIons to a greater or lesser degree Havmg determmed that the LCBO did not act unreasonably by requmng aJob compeTITIon for these CSR vacanCIes, senous concerns anse however about the actual process used. The apphcants had been performmg much, If not all, of the work of a CSR and yet failed to score a passmg mark on the mtervIew and/or performance appraIsal conversIOn, or both. That gIves nse to some mIsgIvmgs about both aspects of the process used to rate these apphcants. Those mIsgIvmgs were expressed by members of the mteMew panel themselves. SImilar senTIments, albeIt m the context of tests, were vOIced by the Board m the Hall/Powers case (supra), at page 18 and 19 There ma, be nnsgIv111gs about tests based on theIr usually hav111g been prepared b, persons who have not had them properly vahdated. That IS, the, are usually tests prepared b, mnateurs, albeIt usually amateurs wIth knowledge of the quahficatIons and abihtIes requITed to perfonn the duties associated wIth the Job However If those who prepare and adm111Ister the test meet certa111 cntena, tests have been gIven consIderable weIght 111 assess111g quahficatIons and abihty See Brown and Beatty Canadian Labour ArbItration (Tlurd EdItion), at para 6.3340 Panels of the Board have not 111IsIted that the creation, adm111IstratIon and evaluation of a test be an exerCIse 49 m perfectIon. At the same tIme, m lookmg for objectIve eVIdence whIch would assIst a panel to evaluate the candIdates. quahficatIons and abihty where the Job posted IS one where the candIdates have had substantIal ongomg expenence and where theIr performance of the Job has been observed and revIewed b, representatIves of the Emplover the evaluatIon of the candIdates. actual perfonnance on the Job must be preferred to a test, especIally where the test of actual expenence on the Job conflIcts WIth the more theoretIcal test. Unfortunateh the Emplover m carrvmg out ItS responsibihtIes, although ItS representatIves acted m good faith throughout, overlooked sIgmficaIlt objectIve eVIdence concenung the quahficatIons and abihty of the apphcants. There was available to the Emplover objectIve evaluatIons made b, supervIsors over a consIderable penod of tune, of the fWlctIonmg of the apphCaIlts m the ven posItIon that was the subject of the postmg. The, also had the means of obtammg oral assessments from supervIsors. Onh ten out of one hundred and fifteen marks were gIven to ail apphCaIlt who had obtamed the status of CorrectIonal Officer 2. As far as CaII be detennmed, no attempt was made to evaluate the quahficatIons and abihty of the apphcants to perform the requITed dutIes aIld responsibihtIes of the posItIon based on theIr actual perfonnaIlCe of the Annex CorrectIonal Officer Job On the eVIdence we must find that Mr Hall not onh performed the work of an Annex CorrectIonal Officer extremeh well when he was requITed to perfonn that Job but that he was seen to do so b, Ins supervIsors There was no suggestIOn that eIther of the other two apphcants were evaluated on the basIs of theIr on-the-Job performance as bemg an, better than Mr Hallm tenns of theIr quahficatIon aIld abihty to perfonn the dutIes of the Job Nevertheless, we are asked to VIrtu all, Ignore the reahty of actual on-the-Job perfonnaIlCe m favour of an evaluatIOn whIch awarded 87 per cent of the marks to the wrItten and oral tests. The tests ma, mdeed contam questIons aIld reqwrements whIch are Job related. However unlike an evaluatIon of actual Job performance, the, are mamh a test of potentIal. In the CIrcumstances of tlns case, the test score of Mr Hall appears to fly m the face of Ins objectIve record of Job performance, whIch IS relevant to the questIon of hIS relatIve quahficatIons and abihty to perfonn the dutIes of the posted posItIon. Based on Ius perfonnance on the test (the answers to the oral questIons on the mtervIew and hIS wntten essa,) Mr Halles quahficatIons aIld abihty to perfonn the Job would appear to be extremeh hnnted. His wlcontradIcted eVIdence concellung Ius expenence aIld the objectIve evaluatIons receIved b, hun while actualh performmg the Job ought to have mdIcated that the test had not done an adequate Job mlns case, of assessmg Ius quahficatIons aIld abihty to perfolln the Job relatIve to the other candIdates. There IS frequently an appearance of fairness and objectIvIty m a test mtended to assess the relatIve quahficatIons aIld abihty of candIdates to perfolln the dutIes of a Job Tlus, no doubt, contributes to the frequency of use of tests. It aVOIds man, challenges based on alleged subjectIvIty m the evaluatIon process. But tests whIch, at best, assess the potentIal of candIdates must be used wIth care Tlus IS especIally so when, as m tlns case before us, there IS eVIdence of evaluatIon of actual Job performance performed b, representatIves of the emplover whIch 50 eVIdence was not senoush challenged. We do not expect the Emplover to cam out Its responsibihtIes accordmg to some paradIgm of perfectIon. Although It acted m good faith, b, VIrtu all, Ignonng the eVIdence of actual Job perfonnaIlCe, It neglected to consIder sIgmficaIlt cogent eVIdence necessan to properh carn out ItS responsibihtIes under artIcle 4 03 Those concerns anse m the mstant case. There are five gnevors before me who have performed the Job of a CSR on a part-tIme basIs for a sIgmficant number of years. They have all receIved sansfactory or better performance appraIsals over the years and yet, m some mstances dId not aclneve a passmg mark on the mtervIew portIon of the compennon. That should have raIsed some doubt m the LCBOos mmd about the vahdity of those results. Mr Netta, who has been a part-nme CSR smce before 1990 was only gIven 24.2 marks for lns mtervIew out of a possible 60 Mr Marozsan, With a semonty date of 1991 only rated 25 pomts, less than a passmg mark. Even though these marks raIsed some quesnon m some of the panel members. mmds about the poor shoWing of the apphcants, no attempt was made to reconcile those results With the evaluanon of the apphcants on the Job Even more dIsturbmg IS the fact that the mformanon was readily aVaIlable Wlnle I apprecIate that there were a number of apphcants to reVIew the Importance to these long-servIce part-nme employees of obtaImng a permanent full-nme posInon warranted a thorough consIderanon of all relevant factors and, m partIcular an mvestIganon when the results proved to be so unexpected. As set out above, It was open to the LCBO to engage m a more ngorous process than sImply takmg all of the candidates as relanvely equal and awarding the Jobs m order of semonty However once It dId so It was reqUIred to thorougWy assess them usmg the mformanon easily available to It. 51 The converSIOn of the performance appraIsals raIses the same and addiTIonal concerns. In the first mstance, the results agaIn were not consIstent WIth the actual assessments of the apphcant-s Job performance The performance appraIsals were meant to be an evaluaTIon of an employee-s abihty to perform the dUTIes of the pOSITIOn. They are completed by supervIsors who have seen the employees at work and who are m the best pOSITIOn to evaluate theIr abihty All of the gnevors receIved saTIsfactory P A-s dunng theIr part-TIme servIce and yet receIved very low marks m the converSIOn. Mr Netta did not even get a passmg grade, notwIthstanding the fact that ms P A-s contam favourable comments about mm and ms work habIts. No one thought to quesTIon that dispanty wmch IS surpnsmg m the CIrcumstances. In Ms. Noms- case, she receIved 27 marks on the PA converSIOn and only 16.2 on the mtervIew Agam, one wonders why no questIOns were asked about that dIscrepancy One of the reasons, m my VIew for the poor shoWing of some of the gnevors m the P A converSIOn IS the fact that not all managers rate theIr employees by the same scale Some are generous and more comphmentary about theIr employee-s abihTIes. Some, on the other hand, are less flattenng and tend to gIve lower marks. Others take the safe route and mark m the mIddle range and make up for the average mark by adding favourable comments. A straIght mathemaTIcal converSIOn cannot take mto account those purely subjectIve elements for the very reason that they were never mtended to be apphed m such a manner They were desIgned to provIde a method of assessmg an employee-s abihty to perform the dUTIes of the pOSITIOn m a qualItaTIVe, not quanTItaTIve manner Even though each style used has a numbered scale for evaluaTIon, 52 the descnpTIon of the range for each value IS broad enough to mVIte addITIonal comments. Indeed, comments are expected. And yet, no consIderatIOn was gIven to those comments m the converSIOn. Equally disturbmg IS the fact that the gnevors were never advIsed that theIr P A.s would be used m such a manner Indeed, some of them were told qUIte the OpposIte. The general VIew was that P A.s were not very Important and that, at least m the gnevors. cases, there was no need to note an objecTIon to them unless they were clearly unacceptable To suddenly attribute values to the marks on the P A.s Without advIsmg the employees at the TIme of theIr Importance IS unfaIr In addiTIon, gIven the LCBO.s approach m tlns matter to Ignore wntten comments, It IS open to quesTIon whether those objecTIons would have receIved any consIderaTIon. The ObVIOUS problem With the converSIOn IS that none of the favourable comments m the P A -s were taken mto account dunng the process. Even when the sconng at the mteMews raIsed queSTIons about the results, no consIderaTIon was gIven to factonng m the pOSITIVe comments on the P A-s concemmg the gnevors. actual performance on the job Even when one gnevor failed to achIeve a passmg mark on the conversIOn, no one thought to check With hIs store manager to find out why he dId so poorly on the converSIOn and the mtervIew m the face of favourable P A.s m the past. ThIs mformaTIon was available at the TIme and could have made a dIfference m the result If It had been consIdered. The fact that It was not puts the enTIre process m quesTIon. 53 The Umon also objected to the fact that Mr Scott Grech, who receIved 73% on the tests was held up as a -ghost- candidate for all sIxteen pOSITIOnS, even though he never actually receIved aJob offer He scored the lnghest combmed score but did not have enough semonty to warrant a Job offer The fact IS, Mr Grech was 26th on the semonty hst and would have been the next one to be offered a Job If one had eXIsted. The next lnghest mark was 71% by an apphcant who was offered a Job Even If they had ehmmated Mr Grechos score from the compeTITIon, relaTIve equalIty would have been m the range of71% to 51& and the pOSITIOn of the gnevors would not have changed because none of them scored more than 51% m total. All of the other successful apphcants receIved scores rangIng from 53% to 64%. The Umon did not take Issue WIth the 20% range and settIng the 20% on the basIs of the lnghest score was not unreasonable The final problem m the LCBO-s process IS the weIght gIven to the mtervIew and the past P Aos It determmed that 40% would be allotted to the past P Aos and 60% for the mtervIews. No raTIonale was gIven for that weIghTIng by the LCBO and, m my VIew It does not seem reasonable m these CIrcumstances. IntervIews can be a useful tool m determmmg whether to make a Job offer to an apphcant. That IS especially true m the case of apphcants new to the employer However m the mstant case, the LCBO had a hst of employees who were known to at least some store managers and who had been appraised by those store managers on at least two occaSIOns m the past. It would have been easy for the LBCO to ask these store managers about these employees. To place more weIght on the mtervIews than actual performance appraisals m these cIrcumstances, m the absence of an explanaTIon, seems arbItrary and unreasonable. The results of the mtervIews has proven that to be the case. Long servIce employees who have been performmg 54 the essentIal dUTIes of a CSR for years failed to achIeve a paSSIng mark on theIr IntervIew Of the sIxteen who were offered pOSITIOnS, only three scored more than 50% on the IntervIew Of the forty who passed the ImTIal screemng, only SIX were rated above 50%. It IS hard to Image how 40 employees who had been the performIng the essenTIal dUTIes of a CSR for a number of years could have failed an IntervIew for that very Job It suggests that the apphcants were scored on theIr abihty to pass an IntervIew not on theIr abihty to perform the funcTIons of a CSR. That ought to have been a sIgnal to the LCBO that theIr process was flawed. It should have at least raIsed some queSTIon about the weIght It should ascribe to the IntervIew For the reasons set out above, the selectIOn process for these CSR vacanCIes cannot stand. The LCBO did not consIder all of the relevant factors In determImng who should be offered a permanent pOSITIOn. It had the InformaTIon but chose to Ignore It. It did not consIder relevant comments on the apphcants. performance appraIsals and, to the extent It reduced those performance appraIsals to a numencal figure, purposefully Ignored InformaTIon favourable to the gnevors. It rehed too heavily on the IntervIew to the candIdates. detnment. It gave to much weIght to the IntervIew when It had more complete and better sources of InformaTIon aVaIlable to It. When the apphcants as a group scored so poorly on the IntervIews, the LCBO ought to have realIzed how Inaccurate the results were, gIven the work hIstory of the group In the Bechard case (supra) the gnevor had apphed for the pOSITIOn of "C" store manager whIch was ulTImately awarded to another apphcant With sIgmficantly less semonty The Board noted on page 34 the folloWing: 55 As stated earher Article 21 Sea) IS a sufficIent abihty clause pursuant to whIch a promotIon must be awarded to the selllor quahfied candIdate TIns ty'pe of provIsIOn, m nn Judgment, places certam obhgatIons on the Emplover m terms of the nature of the process It uses to fill Job postmgs. Clearly the process should be desIgned to focus on the quahficatIons of the selllor person m respect of Ius/her abihty to perfonn the dutIes and responsibihtIes of the posted posItIon. I am satIsfied that the process should, norm all, mclude an assessment b, the selectIon panel of the selllor apphcant's work Inston and expenence mcludmg a reVIew of relevant performance appraIsals, supervIson comments and dIscIphnan and attendance records. These sources of mfonnatIon are Important because the, willlikeh provIde the panel With some mSIght as to how the apphcant mIght perform il placed m the Job More specIficalh It allows them to match the emplovee agamst the actual Job dutIes and thereby reach an mfonned assessment as to whether the person has the needed skill, abihty and expenence Put a shghth dilferent way I thmk that the panel places a selectIon m real Jeopard, when It dIsregards mformatIon relevant to the threshold questIon wIth whIch It IS seIzed. I have no doubt that the process ma, mclude an mtervIew or test of the ty'pe used here, subject to the caveat that there IS a substantIal nsk such an mtervIew wIthout more, mavbe vIewed as msufficIent m tenns of ItS abihty to VIeld an accurate assessment of the candIdate's overall quahficatIons. Generall, the mtervIew should fonn part of the exerCIse rather than bemg the entIre process. In other words, It should not serve as the sole or exclusIve measure of an emplovee's quahficatIons, especIally m sItuatIons where other relevant data IS readih available In sumnUln I conclude that the process should be sufficIently comprehensIve so as to penmt the emplover to make a fair reasonable and mformed decIsIOn as to whether the selllor candIdate IS quahfied to perform the work. Although the Board m that case was consIdenng a threshold questIOn of abilIty to do the work, the comments are applIcable to a case of relaTIve equalIty as m the mstant case. A reVIew of the performance appraisals, supervIsory comments, dIscIplInary and attendance records would gIve the panel some mSIght mto how the candidate mIght perform m the Job That IS even more sIgmficant when one consIders that the LeBO had access to direct observaTIons about these applIcants. abilIty to perform the work. The process used m thIS case was not .sufficIently comprehensIve so as to permIt the employer to make a fair reasonable and mformed decIsIon. about who should be awarded a fun TIme pOSITIOn. REMEDY In revIewmg a J ob compeTITIon, a Board of ArbItratIOn can, and mdeed IS reqUIred to award the Job to a 56 gnevor If It IS saTIsfied on the eVIdence before It that the gnevor would have been successful m ms/her apphcaTIon but for the breach of the collectIve agreement. In thIS case there are forty apphcants for sIxteen posItIOns. After addmg the scores acmeved on the mtervIew and P Aos the LCBO offered Jobs to sIxteen apphcants, the last bemg the 25th on the semonty hst. It IS Impossible m these CIrcumstances to say WIth certamty that these gnevors would have been successful If the LBCO had conducted the mtervIews differently The appropnate remedy m the CIrcumstances IS to reqUIre the LCBO to rerun the compeTITIon. The Junsprudence IS clear The candIdates must be evaluated by reference to all of the mformaTIon available regarding theIr abihty to perform the Jobs at Issue. That mcludes, at the mImmum, a revIew of theIr complete performance appraisals, theIr supervIsors comments, theIr personnel files and any other mformaTIon that would assIst the LCBO m makmg an mformed decIsIon about an employeeos abihty to perform a J ob Dated at Toronto, Ontano hIS 20th day of December 1999 Loretta Mikus, Vice-Chair