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HomeMy WebLinkAbout1997-0923.Currans-Chaput.98-07-29 Decision ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUlTE600, TORONTO ON M5G 1Z8 TELEPHONEfTELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACS/MILEfTELECOPIE (416) 326-13P6 GSB#0923/97,0924/97 OLB#048/97, 049/97 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (Currans/Chaput) Grievor - and - The Crown m RIght of Ontano (LIquor Control Board of Ontano) Employer BEFORE Paula Knopf Vice-ChaIr FOR THE Gary Carolme UNION Counsel Carolme Englemann Gottheil Bamsters and SolIcItors FOR THE Laurel A. Johnson EMPLOYER Counsel Ogilvy Renault Bamsters & SolIcItors THIRD PARTY RIchard Savage (INCUMBENTS) PIerre Roy HEARING November 20, 1997 February 23, April 3, May 19, 25, June 22, 1998 - DECISION IntroductIon Tills IS a Job postmg case mvolvmg two posItIons of manger at LCBO retaIl outlets known as "C" stores There are two gnevors who have greater semonty than the two people selected for the sought after posItIons Both mcumbents were mvtted to partIcIpate m the proceedmgs They attended throughout the case The relevant provIsIons of the collectIve agreement are 21 5 (a) Where employees are bemg consIdered for promotIOn, semonty wIll be the determmmg factor provIded the employee IS qualIfied to perform the work. 21 9 (a) In the event an employee who has been promoted tS unable to perform the reqUIrements of the posItIOn m a sattsfactory manner wlthm a penod not exceedmg three (3) months from date of appomtment, the employee shall be reclassIfied to the employee's prevIous classIficatIOn and assIgned to the step m the salary range attamed lITunedlately pnor to promotIOn The posItIOn of manager of the "C" store IS a bargammg umt posItIOn. The "C" store IS deSIgnated as such because of ItS SIze, sales volume and number of staff relatIve to other smaller and larger outlets, rangmg from "A" to "D" deSIgnatIons WIth "A" bemg the largest The smaller outlet IS known as a "D" store There are two posItIOns affected by the case One IS the "C" store called Casselman and the other IS called Rockland The PosItIOn Postmgs for the two opportumtles are the same The relevant portIons of those Postmgs read as follows - 2 - PROFICIENCY IN ENGLISH AND FRENCH ESSENTIAL Under the general supervIsIon of the Dlstnct Manager, the Store Manager assumes complete responsibilIty and accountabtlIty for the store by' Planrung, co-ordmatmg, schedulmg and adnurustenng key store functIons such as customer servIce, stock layout, storage and mamtenance, securIty, management reportmg, and cash handlIng and bankmg; hinng trammg, schedulmg, evaluatIng and dlsclplmIng store staff; performmg adnurustratlve functIons such as budget preparatIon, processmg lIcensee, agency and specIal permIt applIcatIOns, and ensunng adherence to polICIes and procedures QU ALIFICA nONS The successful candIdate WIll have developed the knowledge, skills and abIlIty to perform at the "C" Store Manager level, through a combInatIOn of progressIve experIence m store operatIOns and relevant educatIonal programs In key areas such as Customer ServIce SocIal ResponsibilIty and Human Resources Management You must also demonstrate an awareness of LCBO strategIes Includmg Customer ServIce Standards of Excellence, Health & Safety/WCB envIronmental Issues, and Employment EqUity You should possess good leadershIp, Interpersonal and commurucatlOn skIlls, and have completed Product Knowledge Level I and II and workmg towards Level III The followmg are also CrItIcal areas for candtdate assessment 0 Merchandlsmg 0 Inventory Management 0 Busmess Management, ego budget 0 FacilItIes Management, ego repaIrs, maIntenance 0 SecurIty The LCBO tS an Equal Opportumty Employer PLEASE NOTE o CandIdate qualIficatIons wIll be determmed through an IntervIew process and mu.s1 meet the followmg basIc requIrements In order to be called for an IntervIew' a) past satIsfactory work performance b) revIew of disCIplIne and attendance records, c) French Language ServIces requIrements, where applIcable - 3 - With very few exceptions wruch will be noted later, the relevant facts are not In dIspute In a nutshell, the two gnevors, the two Incumbents and one other person were Interv.Iewed for the two posItIons because they met the "basIc reqUIrements" lIsted In the PosItIOn Posting. As a result of thetr performance at the intervIews, the two gnevors and one other candIdate were considered to have "failed the Intervtew" The remaInmg two candIdates were offered the two posItIons The eVidence regarding the gnevors and the selectIOn process will be revIewed In some detail Robert Chaput He has worked for thIS employer Since 1979 He was the second most semor applIcant. He applIed for both of the posItIOns He IS fluently bIlingual His work expenence Includes approXImately 14 years as a clerk In three different "A" stores For almost two years from, 1991 to 1992, he worked as the" Acting Manager" at the Rockland Store wruch tS the subject oftrus gnevance He then returned to the pOSItIOn of clerk until he was awarded the Manager's pOSItIOn at the "D" store In Bourget. Trus IS the pOSitIon that he holds to trus day In thIS capaCIty he has three casual staff who work With rum. For the last two years he has reported to the DIstnct Manager, Guy Marcotte Pnor to trus, PIerre Trudeau was the DIstnct Manager Mr Chaput's annual performance appraIsals from 1990 to 1996 were filed In eVIdence The performance ratings vary from 1 to 5 With 1 being the hIghest and indIcating "consIstently exceeds bUSiness reqUIrement" Number 5 IS the lowest rating and sIgmfies "does not meet bUSiness requIrements" Each ofMr Chaput's ratings are lIsted at number 2 WhICh indicates "performance consistently meets bUSiness reqUIrements and sometimes exceeds them." On indIVIdual Issues such as "acruevement of business goals" - 4 - and "management of work", he IS consistently rated at at least 2 with posItIve comments In terms of "management of people" he IS rated at "}" for the last two years whIch sIgrufies "performance meets busIness reqUIrements" The comments ofMr Trudeau record Mr Chaput's "unorthodox" and "direct" style In dealIng WIth staff, but also credit that employees enJoy workmg WIth him. Earlter appraisals are consIstent WIth thIS type of pattern. Mr Chaput received a specIfic commendatIOn for hIS work In the actIng manager asstgnment at the Rockland store On June 29, 1993 Mr Trudeau wrote to Mr Chaput saYIng Bob, I WIsh to take this opporturuty to thank you for the excellent Job you dId dunng your aSSIgnment as store manager In Rockland ConsIderable tmprovements m both customer service as well as profitabilIty were noted, ego Net Income mcreased $61 876 or 12 3 % endmg March 3 1, 1993, and rul customer stock outs for the maJonty of the time These results, as well as maIntamIng a balance m all other areas of store operatIons, reflect your total dedicatIon and loyalty to you employer [SIC] You have demonstrated that meetmg the needs of our customers dIrectly affects the bottom lIne AgaIn, thank you for your efforts, I apprecIate your hard work and your pOSItive attitude That letter confirmed an earlter appraisal given m March 1992 of Mr Chaput's performance as an actIng manager when Mr Trudeau outlIned the Improvements Implemented by Mr Chaput and concluded, "Thanks for a good Job" - 5 - Mr Chaput testIfied that there IS "no dIfference" at all between the responsibihtIes of an acting store manager and a full-tIme manager because the former IS put In control of a store for the duratIon of the assIgnment In Mr Chaput's mind, an acting manager IS expected to take over all the staffing, budgetmg, layout, maintenance, stock. and secunty responsibIlItIes of a manager Mr Chaput also testIfied about the successes and Improvements he has aclueved as the manager of the Bourget store, especIally m the nature of Increased sales Mr Chaput further belIeves that there tS no dtfference between hIS responsibIlIties as the manager at the "D" store In Bourget than the responsibIlItIes he would assume as the manager at the Rockland "C" store When the Rockland and Casselman openings were posted, Mr Chaput apphed for both because, as he testIfied, "I figured I was the man for the Job I was there before both stores ran the same way" Mr Chaput's former dIstnct manager, PIerre Trudeau, had worked for tlus employer from 1966 to 1996 He was the DIstnct Manager from 1992 to 1996 He has now retIred but was Mr Chaput's dIstnct manager for many years He was In retIrement at the tIme tlus competItIOn was bemg held Mr Trudeau was never asked by the LCBO to gIve lus opinion about Mr Chaput or hIS SUItabIlIty for the pOSItIons he was seekmg. Mr Trudeau's opinIOn IS that there IS no dIfference between the type of responsibIlItIes of a "C" and "D" store manager Mr Trudeau praIsed Mr Chaput's performance as a "D" store manager, describing mm as "excellent" and "obsessed With customer servIce" Mr Trudeau also described Mr Chaput's "strengths" as being In the areas of Inventory control, SOCIal responsibilIty and merchandIsing. Mr Trudeau dId express some concerns l I f - 6 - about whether Mr Chaput would be able to explam the financIal or budgetary aspects of the responsibilIties of a "C" store On the other hand, Mr Trudeau had no concerns about Mr Chaput's abilIty to actually deal wIth budgetary matters on a practIcal day-to-day basIs Mr Trudeau also lIsted Mr Chaput's wntten commUnIcations and "unorthodox" way of givmg directIon to employees as other weaknesses to be considered Yet, Mr Trudeau hastened to add that he had never received a complamt from any of Mr Chaput's staff Mr Trudeau's opmlOn was that Mr Chaput IS "qualIfied" to manage a "C" store and cites as proof the fact that he was left m the Rockland store as actmg manager for close to two years Without any problems and wtth the achIevement of mcreased sales Mr Chaput's mterview was not a positive expenence for him. He admItted to bemg "very nervous" gomg mto the mtervtew He explamed, "I'd never had an mtervlew m my 11fe " He was chagnned to see that the mtervlew team consisted of rus Distnct Manager, Mr Guy Marcotte and an "A" Store Manager, Karen Richardson- Noms The trurd member was Colleen 1mbesl, from Human Resources Mr Chaput felt that he and Mr Marcotte "did not get along" very well Mr Chaput also felt that he and Ms Richardson-Noms "had been fightmg smce a golf tournament" and he says that he had not spoken to her smce He described feelmg that" I don't have a chance" when he saw Ms Richardson-Noms on the panel Mr Chaput began the mtervlew thmkmg that only one vote would be favourable to him, that bemg from Ms 1mbesl The Irony IS that he recetved the hIghest scores from Ms Richardson-Noms and from Mr Marcotte respectIvely Ms Imbesl ended up ratmg him the lowest. Further, Ms Richardson-Noms described her relatIOnshIp WIth Mr Chaput as "good" In fact, she described how he had approached her for assistance 10 the mtervlew even before the Job postmg was offiCial ThIs IS the normal klOd of request But she had to adVise hIm that she could not help him i - 7 - because of her mvolvement on the selection panel Further, she admItted that she socIalIzed wIth other candIdates such as Mr Savage She saId that she sees "everybody" socIally, mcludmg the two gnevors, after work and mentIOned formal and mformal staff festIvItIes She dIsagreed wIth Mr McKmnon's (another store manager) testImony that It would be mappropnate for her to mtervlew people whom she knew soctally She saId "I knew everyone SOCIally What dtfference would It make?" Mr Chaput understood that the mtervlew would determme whether he got the posItIon. He admIts that he gave the mtervlew "hIS best shot." He also admIts that he answered the questIOns posed to him based on hiS knowledge ofLCBO polICies and hiS expenence over the years mcludmg as an actmg "C" and actual "D" Store Manager Michael Currans Mr Currans has 19 years' service with thIs employer He IS fluently bilIngual He IS classIfied as a bookkeeper He has worked as a clerk m "A" stores His recent expenence mcludes workmg as a bookkeeper for three years m the Ottawa distributIon depot At the tIme of the gnevance he was workmg at the "Vintages" locatIOn, assummg responsibilIty for all the accounts and servlcmg the "higher clIentele" He was "second m command" at that store, actmg mformally as an assistant manager and fillmg m dunng the manager's absences His dally responsibilIties mcluded bookkeepmg, clIent services, mventory, budgetmg, staffing and schedulmg Issues He has filled m on other formal "actmg assignments" In 1985 he was actmg manager for "C" stores for two penods of two and SIX weeks He also served three times as the actmg manager of the Rockland "C" store, fillmg m dunng the manager's - 8 - summer vacations In 1993 he received a letter from Pierre Trudeau thankIng lum for the work done as the acting manager at Rockland and saYing, "operatIOns were handled In a competent, orgaruzed and effective manner" A similar letter of praise was Issued In 1985 I would hke to thank you for the excellent Job you performed as acting manager In Plantagenet and St. ISidore tlus summer Operations were handled In a competent, organized, and effective manner You assumed complete responsibilIty for the stores, including customer service, stock, secunty and accounting procedures These functions were camed out conscientIOusly, and With the confidence and Judgement of an expenence manager [SIC] Congratulations on a Job well done In June 1996, the Director of the Eastern RegIOn wrote a letter of praise to Mr Currans regarding lus performance at hIS regular duties, whIch reads Just a bnef note to congratulate you on your exceptional performance over the last performance review penod It IS the dedication and service of people lIke yourself that wIll truly make the LCBO the "Retailer of ChOIce" Mr Currans' annual performance reviews were filed for the penod 1988 to 1996 From 1990 onwards the performance rating IS consistently rated at number 1 being "outstanding" or "exceptIOnal" or "consistently exceeds Job reqUIrements" He has taken several product knowledge courses and taught service modules to fellow employees Five years ago, Mr Currans was selected as one of the 20 employees In the province to be sent on a one-week course In Human Resources which was taught off site He IS also purSUing a bUSiness management certtficate at the college level on lus own Initiative - 9 - Mr Currans only applied for the Rockland posItIOn. He believed that he would get the Job Mr Currans had an expectatIOn that he would be awarded the posItIOn because he was the seruor applicant who had worked m the store, knew the clIentele and had been praIsed for ills work by the Dlstnct Manager, He also felt he had dIrect expenence m all aspects of the key areas listed m the PosItIOn Postmg. However, Mr Currans described hImself as bemg "nervous" and "apprehensIve" about the mtervtew He felt a little uneasy about Karen RIchardson- Noms' presence on the mtervlew panel because Mr Currans had acted as the assIstant manager above her at the Vintages store when she was there earlier as a Product Consultant. He also knew that another candIdate for these pOSItIOns, RIck Savage, had worked WIth Ms RIchardson-Noms Mr Currans believed that Ms RIchardson-Noms and Mr Savage attended dmner partIes together outsIde of the work context. However, Mr Currans adrruts that he IS not allegmg that Ms RIchardson-Noms' markmg or sconng would have been affected by her past dealIngs WIth eIther hImself or Mr Savage Ms RIchardson-Noms describes her frIendshIp wlth Mr Currans and Mr Savage as bemg on "an equal basIs." The mtervlew Itself began WIth Mr Currans bemg told by Mr Marcotte that the questIOns would be repeated If requested. Mr Currans exerctsed thIS optIOn many tImes and asked for some questIOns to be repeated more than tWIce At some pomt, Mr Marcotte felt that tills process was not Yleldmg any slgruficant results and refused to allow the questIons to be repeated But hIs colleagues on the panel mSlsted that the questIOns be repeated at Mr Currans' request and the questIOns were m fact repeated for Mr Currans At the end, Mr Currans felt that he had answered all the questIons well and i' I that he had done "OK" at the mtervlew He feels that he gave all the mformatlOn he could I r - 10- at the mtervtew and he admIts that he had an opporturuty to apply hIS knowledge of LCBO pohcles and ills expenence m answenng the questIons When he was not awarded the Job, he filed tills gnevance because, as he testIfied, "I felt I've been more or less gIpped. I felt I'm the candidate for the [Rockland] posItIOn. You can't base 20 years on SIX questIOns to say you're not quahfied to do the positIOn." John McKInnon was the manager of the Vintages store from 1995 to 1997 He confirmed the range of duties that Mr Currans performed at that store and explamed that Mr Currans had acted as the unofficial assistant manager Mr McKInnon described Mr Currans' strength as bemg "commItted, very profeSSIOnal, never a problem with lateness and a lot of expenence" His "weaknesses" were saId to be presentatIOn skills and product knowledge m the context of a Vintages store In that context It IS common for the customers to specifically request the assistance of the specIahzed Product Consultant or the manager But Mr McKInnon added, "I noticed Improvement [from Mr Currans] from the day he came to the day he left" Mr McKinnon testified that Mr Currans was "capable" ofmanagmg a "C" store "He had the bastc overallleadersillp profile necessary to become a manager He was firm. Yet he would hsten to an employee with a problem He had a humamstlc encouragmg profile which he brought to the work place He made my Job easier" Mr McKInnon rated both Mr Currans and the other candidate Mr Savage, as "above average employees" Mr McKInnon explamed that Mr Currans received a higher performance ratmg over Mr Savage m the year pnor to the competitIOn because ofMr Currans' "contributIOn to the store and the yearly budget" - 11 - The SelectIOn Process In the past, ArtIcle 21 5 has been admInIstered very sImply by thIs employer PosItIOn po stIngs solIctted applIcatIons The applIcatIOns were revIewed The semor applIcant would be gIven the Job subject to a check. of the annual performance appratsals, the dIscIplInary records and whether the applIcant's manager's evaluatIOn revealed any dIfficultIes As Mr Trudeau described the process, "If there was nothIng In the file to say he can't do the Job, then you've got yourself a manager" The current Dlstnct Manager, Mr Marcotte, described thIS system as "good" In the sense that It was "fast" He added, "sometImes we got good candIdates and It tted up a lot less tIme It was semonty based" On the other hand, Mr Marcotte commented that tlus system tended to promote people who had been there a long tIme and who were not very "hungry" or "motIvated" In terms of performance Mr Marcotte also commented that some of the longer servIng employees were more dlctatonal rather than beIng "team players" from the new school. The old process would not weed these kmd of people out Mr Trudeau testIfied that In 99% of the cases, the Employer was able to find someone to satlsfactonly fill a vacancy by SImply reVIeWIng employee files In the unusual cases where the employee was found not to be SUItable, the employee would be returned to lus former posItIon before the end of the three month "probatIOnary penod" and the posItIon would be reposted. The Employer deCIded to Implement what It hoped to be a more soplustlcated system of admInlstenng ArtIcle 21 5 Mr Marcotte explaIned that the Employer wanted to be able to assess candIdates' qualIficatIons, SkIll, and abilIty before the - 12 - promotIon. The Employer revIewed all the applIcants' annual performance appraIsals dISCIpline and attendance records for purposes of deCIding whether an applIcant would be intervIewed If no dIfficultIes were noted the three senior applIcants were gIven an intervIew for each posItIOn. In thIS case, five applIcants were Intervtewed The intervIew team IS selected by the DIstnct Manager The team conSIsts of the Dlstnct Manager, one store manager, and a representatIve from the Human Resources Department. Mr Marcotte chose Ms RIchardson-NorrIs to be on thiS interview panel for" developmental" reasons She was a relatIvely recent appointment as an "A" store manager and had never served In a competitIOn process for a "C" store manager, or Indeed, for any full-tIme promotIon. She had prevIously partIcIpated on selectIOn comrruttees for casuals and for hIrIng people from the casual to the full-ttme staffing pool The third member of the Intervtew team was Colleen ImbesI who was selected as the "Impartial" representatIve from Human Resources The questIons for the intervIews were selected by Mr Marcotte from a bank "of eXisting interview questIons developed for intervIew purposes" Mr Marcotte testIfied that he selected questIOns that would be related to Issues and concerns of the Jobs that were posted The questIons were chosen to cover Issues In both the stores The intervIew panel met bnefly before embarkIng on the IntervIew process The members of the panel were gIven packages wIth the selected questIons and "suggested answers" together wIth the scores available for each question. The order of the questions was predetermined and the questions were assigned to panel members to ask.. Each candidate was asked the same questIon by the same panel member In the same order - 13 - The only stgmficant factual dIspute m thIs case comes from the dIfferent testImony gIven by Mr Marcotte and Ms Rlchardson-Norns about how the candIdates' answers were scored Ms Rlchardson-Norns testIfied that each panel member scored answers mdependently and that they then revealed scores to each other after each candIdate's mtervlew She testtfied that there was no dISCUSSIon about each of theIr scores The three scores were then sImply computed together to determme an average She dId mdlcate that m some mtervlews one panelIst may seek clanficatlOn of an answer from another for sconng purposes But she does not recall thIS occurnng dunng tills competltlOn. She testIfied that there was no dISCUSSIon about the scores wIth each other, SImply an averagmg of each mdlvldual score Mr Marcotte's eVIdence was qUIte dIfferent. He testIfied that the scores were compared for each candIdate at the end of each mtervlew to ensure that everyone was markIng "accurately, In a non-btas fashlOn and In the same ball park." Mr Marcotte testIfied that the scores were then adjusted to achIeve a "consIstency" WIth the three panelIsts' scores He explaIned that tills process would help dIsclose whether panelIsts had mIssed or mIsunderstood parts of an answer Once the scores were adjusted they were added up after each candIdate and dIVIded by three to get an average score before the next mtervlew would commence A revIew of the documentatIon of the sconng sheets of each IntervIew for each panel member does show that scores were adjusted, both up and down. Mr Marcotte described Mr Chaput's IntervIew as "not gomg very well." Mr Chaput was described as bemg "very nervous", havmg "trouble focusmg" and usmg a "shotgun approach." He used only one half of the hour allotted to mm for the mtervlew He dId not ask for the questIons to be repeated Mr Marcotte described Mr Currans' mtervlew as "lackIng m detail" and unable to focus on questIons Mr Currans was described as bemg "nervous, but lookIng composed." - 14 - The results of the Interview were as follows Currans 4238% Roy 55 71% L 41 43% Chaput 48 33% Savage 5738% The plan had been to offer the positIOns to the two semor candIdates who "passed the mtervIew" Ms RIchardson-Noms testified that there was no discussion or Issue about the passmg grade m this case She recalled no considerations about reducmg the passmg grade by any amount. On the other hand, Mr Marcotte testified that a pass mark of 60% had been set Mr Marcotte also testified that With these results, the mtervtew panel sought and recetved approval from the Regional Dtrector to reduce the passmg grade to 55% Mr Marcotte testified that It not the practice to try to reduce the acceptable passmg grade by any more than 5% When the passmg grade was deemed to be 55%, that left two candidates In a pass positIOn. The most seruor remaIrung candidate, Mr Roy, was offered his first chOice of pOSitions He chose the Casselman store Mr Savage was offered and accepted the Rockland store Ms RIchardson-Noms testified that she was "surpnsed" by the results of the mtervIews She said she had no preconceived notion of who would succeed m the competitIOn. But she felt that because Mr Chaput and Mr Currans had been In actmg pOSitions, theIr expenence "should have come out better In the mtervIew" Mr Marcotte testIfied that he had expected that Mr Chaput and Mr Roy would be the successful . - 15 - I candIdates pnor to the mtervlew The practIce was that If nobody achIeved a passmg score, the competItIOn would be rerun on a broader geographIc basIs Mr Marcotte admIts that the "new process" of appomtments bemg based on the mtervlews of screened senIor applIcants has some weaknesses He testIfied "It would be nIce to have a revIew of the file as a percentage of the total marks because some people come to mtervIews and are very nervous and could probably perform the dutIes but at the mtervlew Just can't pull themselves together" On the other hand, Mr Marcotte credIts the mtervtew process as bemg able to "bnng out past knowledge and expenence of the candIdates and allowmg a strong candIdate to surface" while "It stIll allows senIonty to be the deterrrunIng factor" He also feels the mtervlew can demonstrate "motIvatIOn" If a candIdate comes well prepared because thIs would show hIs/her "motIvatIon." Mr Marcotte also feels the mtervlew can "weed out" the old style of "dlctatonal management." Mr Marcotte feels that there was plenty of scope m the mtervlew questIOns to demonstrate leadershIp and team skills The mtervlew questIons were The Manager IS responsible for facilItIes management at the store How have you personally been mvolved m thIs process? What other aspects of facIlItIes management would be your responsibilIty? Explam what you would use for selectmg product for placement on end aIsle dIsplays m your store? Your store IS open every Fnday nIght and your casual employee has Just verbally advIsed you that he IS unable to work Fnday nIghts How would you handle thIs sItuatIon? What factors would you take mto conSideration for resolvmg thIs problem? - 16 - In front of you IS a Store Income Statement that IS provided to all managers on their operation. In the middle of the page there are several line Item descnptors Could you Identify what are the 5 (five) most Important') Could you provide a bnef descnptlon of what each represents') What do you do to ensure effective mventory management at your store') Describe how you provlde quality customer service at your store') Gtve an example of an occasion m the past when you had to apply the social responsibility of the LCBO What were the circumstances, how did you handle It, and what were the results? Mr Marcotte testified that he had been unaware that either gnevor had worked as the actmg manager of the Rockland store But, management did not constder either gnevor's expenence as an actmg "C" Store Manager as a relevant or determmatlve factor m th.ts competitIOn. As outlmed above, both gnevors had expenence as actmg "C" store managers The Dtstnct Manager, Guy Marcotte, describes the difference between a "C" and "D" store as bemg based on the fact that a "D" Store Manager usually works by h.tmself7herself so that there IS less of a focus on staffing or human resources Issues Mr Marcotte also described the differences between an acting and a permanent managenal assignment. Mr Marcotte said that the manager has actual responsibility for the operatIOn of the store The assumptIOn IS that a manager would be fully knowledgeable and aware of difficult Issues concerning the store In an emergency, the manager would be expected to handle and resolve a problem. Managers are also expected to meet their defined business plans and goals On the other hand, Mr Marcotte explamed that actmg managers are not governed by or assessed m terms of - 17 - busmess plans In emergencIes, they would be expected to seek the assIstance of the DIstnct Manager unless It was a very mmor matter Trammg Mr Trudeau outlmed the "trammg" gIven to new managers dunng the first three months m the posItIOn under ArtIcle 21 9(a) He described thIS as a "three- month probatIOn" wluch gIves the DIstnct Manager tIme to evaluate the successful candIdate as the new manager Mr Trudeau described that at the begmnmg of the three- month penod he would dtscuss Job responsibIlItIes and set mmor goals wIth the new manager so It would be possible to assess the abilIty of the person to assume the responsibIlItIes of a manager Mr Trudeau would then provIde "coachmg" by attendmg the store at least once a month and respondmg to problems He also encouraged new managers to seek help from the network of other managers At the end of the three- month penod the Dlstnct Manager would decIde If the new manager should contmue m the post. Ms Rlchardson-Norns described the purpose of thIs three-month penod as not bemg an opportumty for the candIdate to learn the Job Instead, she described It as an opportumty for management to see how the person handles the Job SubmISSions on Behalf of the Gnevors Counsel for the gnevors began lus subrrussIOns by gIvmg a detaIled revIew of each of the gnevor's hIstory of employment and achIevements as employees for the LCBO Turnmg to the selectIOn process, It was argued that the new process represents a fundamental sluft from one where the Employer determmed whether a candIdate met the quabficatIOns of a posItIon to a more competItIve process where qualIficatIons are I - 18 - deterrruned wlthout reference to an employee's past performance It was suggested that there was "lIttle eVIdence" to explam why the old process was unsatisfactory The Uruon argues that the low scores attamed at the mtervlew and the dectslOn to lower the passmg mark to 55% "m and of Itself ought to have signalled to management that there were problems with the structure and the content of the mtervlews" The Uruon takes strong objectIOn to the fact that the mtervlew was used "as the sole means" to determme whether each of the applicants was "qualified" The Uruon objects to the fact that past expenence and performance m the position were constdered to be Irrelevant except where such knowledge would be of use m answenng questIOns at the mtervlew The Uruon cntlclzes the Employer for selectmg questions that would not reflect the specIfic qualIties that the Dtstnct Manager was seekIng m a store manager In particular, the Uruon IS cntlcal of the fact that although Mr Marcotte was lookmg for "team leadership" quahtles, the questIOns that were asked would not tend to demonstrate such qualitIes It was also argued that Mr Marcotte ran the mtervlew process m a way that was "more akm to a competition than a determmatlOn of whether the seruor candidates possessed the baSIC skIlls reqUIred for the posItIOn." The Umon stressed that thIs collective agreement has a "threshold clause" whtch means sImply that the most semor apphcant who has the necessary ability knowledge and aptitude to do the Job should be granted the pOSition It was stressed that thIS does not allow the Employer to promote the most qual1fied employee for the pOSitIOn, but mstead the most semor employee who has the baSIC qualIfications The Uruon also stressed that the three-month trammg or "probationary" peflod allowed the employee time to become effiCIent m the pOSitIOn. Counsel for the Umon argued that the Junsprudence establIshes three general pnnctpals applymg to Job competitIOns and threshold clauses m partIcular' - 19 - - When such clauses are present m the collective agreement, the employer must award any Job postmg to the most senIor applIcant that meets the basIc reqUIrements, - When assessmg the basIc requirements, the employer must take mto consideration all the relevant factors, expenence, past performance educatIOn, references etc , - An employer may not rely solely on one mstrument (i e wntten test, Interview or the lIke) to assess whether applIcants meet the baSIC requirements of a posttlOn. Further, the UnIon cntlclzes the Employer for not makIng the selectIOn panel aware of the applIcants' background or personal file, mcludIng performance evaluatIOn. It left the selectIOn board With the responsibilIty of makmg a deCISIOn based solely on the results of the mtervtew The UnIon describes thIS as a flawed process and lIsts the follOWIng elements as factors that put m doubt the faIrness of the process (i) A reasonable apprehenSIOn of bias WIth Ms RIchardson-Noms sIttmg on the panel, gIven that she had been a co-worker of Mr Currans and a fnend of Mr Savage, (ii) Reasonable apprehenSIOn ofbtas WIth Ms RIchardson-Noms and Mr Marcotte gIven Mr Chaput's perceived dIfftcultles WIth them, (ill ) InsenSItIVity to Mr Chaput's concerns about btas and nothIng bemg done to alleVIate hIS perceptIOns, (iv) A "weak lInk" between the questIOns asked and the duties of the pOSitIOn, (v) WeIghts attributed to each questIOn not bemg reflective of the amount of time the Job speCificatIOn attributed to each time or function, ! - 20 - (vi) Gtvmg panel members suggested answers and leavmg the tmpresslOn that panel members marked candidates based on how closely they came to glVlng the expected answers, (vii) The types of questIons and the manner of questlOmng faIled to "draw out relevant personal expenence or knowledge" (vlli) Influencmg panel members to change theIr scores m the mterest of aduevmg balance or consIstency, rather than lettmg the scores reflect each panel member's IndIVIdual view of how the questions had been answered, and (ix) Glvmg msufficIent attention to lessen the nervousness felt by the gnevors dunng the IntervIews The Umon argues that the Employer's process was unfair and faIled to produce a reasonable or relIable mdlcatlOn of whether the two gnevors were "qualIfied" By way of remedy, the UnIon argued that thts IS an appropnate case for the arbitrator to exercise junsdlctlOn to award the positIOns directly to the gnevors Stressmg that tills IS a "threshold case", It was pOInted out that the gnevors were demonstrated to have had successful expenence as actIng "C" Store Managers at Rockland. They had pOSItive performance evaluatIOns for a slgmficant penod of time, they had both receIved pOSItive statements from theIr supervtsors about theIr abIlIty to assume the duties of a "C" Store Manager, and the gnevors were the semor applIcants Finally, It was stressed that there would be a great deal of difficulty m objectIvely assessmg the performance of the gnevors as of the date of the competItIOn, bemg February 1997, given the passage of tIme that the Incumbents have had In the jobs The UnIon requested that Mr Currans be awarded the positIOn of manager of the Rockland store and Mr Chaput the Casselman store Further, It IS requested that both gnevors receIve the dIfference m salary and benefits (if any) retroactIve to the date the Incumbents assumed - 21 - their positIOns The arbitrator was asked to remam seized With any difficulties ansmg from the award. In support of ItS submiSSIOns, the Uruon relIed on the followmg cases UnIVersIty of Windsor and S.E U (1997), 62 LAC (4th) 197 ( Rayner), Kendall Canada and Us. WA. Local8505 unreported deCtSIOn of Doug Stanley dated April 18, 1986, Inglis Ltd. and United Steelworkers of America, Local 4487 (1979), 22 L AC (2d) 175 (O'Shea), Workers' CompensatIOn Board of BntIsh Columbza and Workers' CompensatIOn Board Employees Union (1989), 4 L AC 4th) 141 (Hope), CIty of WinnIpeg and C. UP E, Local 500 (1990), 12 LAC (4th) 231 (M. H. Freedman), Kenora Roman Catholzc Separate School Board and Ontano Englzsh Catholzc Teachers Association (1993),37 L AC (4th) 28 (G J Brandt), Greater Nzagara General Hospital and 0 NA (1997), 60 LAC (4th) 289 (J H. Devlm), Quinn and MInIStry of TransportatIOn & CommunIcations, GSB File 9/78 decIsion dated December 13, 1979 (J.R.S Pnchard), Marek and Mznistry of Attorney General GSB File 414/83, deCISIOn of J Samuels dated January 24, 1984, LiblzklScipneck and Ministry of Transportation, GSB File 2525/91, deCISion ofNimal Dlssanayake dated November 19, 1993, Brooks and Ministry of Health, GSB File 390/82, deCISion of R.L Venty dated November 22, 1982, Alam and MInIStry of CommUnIty and Social ServIces GSB File 140/84, deCISIOn of R. J Roberts dated November 5, 1987 and DeltassIst Community ServIces Society & 1 C T U (1997),62 L AC (4th) 185 (R. Germame) - 22- SubmissIOns on Behalf of the LeBO Counsel for the Employer began by acknowledgmg that tills collectIve agreement creates a threshold test for the selectIon process It was conceded that the language does not perrrut comparIsons of qualIficatIOns between qualIfied candIdates It was acknowledged that the most senIor applIcant will be awarded the posItIon so long as s/he IS qualIfied, even If others are better qualIfied Counsel argued that the selectIon process adopted m thIS case to venfy whether applIcants were qualIfied complIes wIth the collectIve agreement It was stressed that the Employer has the nght and the responsibilIty to determine qualIficatIOns Further notillng In the collectIve agreement specIfies how the qualIficattons of the candIdates WIll be determined In additIon, It was argued that the Employer applIed the selectIOn process properly It was submItted that the junsprudence IdentIfies management's nghts In the selectIOn process as being as follows 1 That management has the nght to determine the qualIfications of the JOb on the basts of relevance to the job, prOVIded that the qualIfications are not set In an arbitrary fashIOn or In bad faIth, 2 that "qualIficatIOn" means that the candtdate must possess knowledge of the job functions and possess suffiCIent skIll and abilIty to carry out the reqUISite tasks and perform the work reqUIred by the pOSItion at a full working level at the tIme of the competItion, 3 that If the candidate does not have the O1lnImUm of qualIfications, there IS no oblIgatIon on management to intervIew or to hire, - 23 - 4 that the lrutlal onus IS on the gnevor to show that he or she IS qualified, and 5 that If the gnevor meets tills onus, then the onus shifts to the employer to show that the gnevor IS not quahfied It was further argued that, absent any restnctiOn m the collectIve agreement, an employer can reqUIre perspectIve apphcants to subrrut to a test or an mtervIew to demonstrate theIr quahficatiOns for a positiOn. It was acknowledged that the cntena that ought to be consIdered are as follows 1) The reason for the mstltutiOn of the test, 2) the adequacy of preparation for the test afforded to apphcants, 3) the admInIstratiOn of the test, 4) the rehabll1ty of the markIng of the test, and finally, 5) the relevance of the test to the work to be performed Turrung to the specIfic complamts of the Uruon, It was argued that the Uruon had failed to make out any case that there was a reasonable apprehensiOn of bIas In tills SItuatIon. With regards to Ms RIchardson-Noms, It was saId that It was unreasonable to suggest that panel members should never have soclahzed With any other candidates It was acknowledged that the process may be susceptible to bias, but It was stressed that there are safeguards m the system, mcludmg the use of three panel members Further, It was stressed that while the gnevors may have personally felt some uneasmess about Ms RIchardson-Noms' presence, there was no sIgruficant eVIdence to show or estabhsh the baSIS of a reasonable apprehensIOn of bias - 24 - Turrung to the way the scores were computed, It was argued that Mr Marcotte's eVidence should be preferred over that ofMs Richardson-Noms' and It should be accepted that there were changes made to the scores as a result of discussions between the three panel members It was argued that the scores themselves give no credence to the complaint ofbtas because the sconng changes mcreased Mr Chaput's score by 4 and had no effective change on Mr Currans' score In additIOn, counsel for the Employer stressed that the Employer's use of suggested answers and the questions wruch were selected meet all the tests of the Junsprudence and amount to an appropnate methodology Further, tt was Said that the Uruon had failed to establish that the selection process was developed or applied m bad faith, wtth bias or arbitrarily It was pOinted out that the candidates were fully aware of the process to be used well In advance that the questIOns were relevant and the sconng fair Counsel for the Employer argued that If there was a findmg that the selectIOn process violated the collective agreement or was not applied properly, the gnevors should not be awarded the Job directly Instead, It was said that the appropnate remedy would be to order the Employer to develop a selectIOn process which Includes the follOWing conslderattons Performance appraisals, time limited to some extent DISCiplinary record, time limited to some extent Attendance record, time limited to some extent Intervtew Supervisory references - 25 - Further, It was saId that the Employer should set up a new competitIOn with the amended process and make It available to the gnevors and the two Incumbents After this process IS applIed, It IS argued that the two seruor successful applIcants should be offered the Casselman and Rockland "C" store manager posltIOns It was stressed that It would be Inappropnate to award the positIOns dtrectly to the gnevors Counsel for the Employer pOInted out that It was the unarumous OpInIOn of the IntervIew panel that neIther gnevor was "qualIfied" for the Jobs It was stressed that Mr Chaput's performance appraIsals show "an ongoIng problem In the human resources area" and that thIS was acknowledged by the gnevor hImself. It was said that plaCIng Mr Chaput In a "C" store manager Job would disregard the IntervIew results and award him the Job based on performance appraisals In a different posItIon. SInularly, It was stressed that the IntervIew panel unarumously felt Mr Currans was not qualIfied for the pOSItIOn of "C" Store Manager and that there IS InsuffiCient eVidence upon wluch to award lum the pOSitIOn. In support of ItS subrrussIOns, for the Employer relIed on the follOWIng cases Trazl A ssociation for Commumty Livmg and CUPE Local 2087, unreported deCISIOn of Ken AlbertInI, dated September 2, 1994, DeBonis, Kmght, P,werka and LCBO, GSB File Nos 1113/85, 1116/85 and 1117/85, deCISion ofJ Forbes- Roberts dated May 29, 1989, Durant and Evans and LCBO GSB File Nos 1586/94 and 1587/94, deCISion of Nimal Dlssanayake dated May 30,1996, MacDonald and LLBO/LCBO GSB File No 1402/88, decIsion ofW Low dated January 29,1992, Corporation of the City of Ottawa and The Ottawa-Carleton Publzc Employees Umon, Local503 unreported deCISIOn of Jane DevlIn dated May 24, 1994, Germamuk and Mlmstry of TransportatlOn and Communications, GSB File No 91/83, deCISIOn of P M. Draper dated December 7, 1983, Coca-Cola Bottling Ltd. (Wmnipeg) and UFCW - 26 - Local 330W, unreported deCISIon ofDavld E Bowman dated November 14 1994, Czty of Winnzpeg and CUPE, Local 500 (1990), 12 L A.C (4th) 231 (Freedman), Wnght and Waskey and Minzstry of Health, GSB File Nos 1832/91 and 1833/91, deCISIon of M. Watters dated February 16, 1994, Esmazl and Jv/mistry of Revenue, GSB File No 1186/87, deCISion ofNimal Dlssanayake dated September 6 1990 and Chen and Talon and Jv/mistry of Health, GSB File No 70/79, deCISIon of Gad Brent dated December 14,1981 The DeciSIOn Tills award must start by settmg to rest any notion of bias m this case There IS absolutely no eVldence to support an argument that this selection process was tatnted by any btas or even any reasonable apprehenSIOn ofbtas Taken at tts best, the Umon's case IS that two members of mtervlew team had etther a SOCial relatlOnshtp With one of the successful candidates and/or the Dlstnct Manager may have been predisposed to some candidates over others The "social" relationshIps were shown to be notillng more than the type of "after work" mmglmg that occurs amongst colJeagues In tills context, the vague notIOn of a "socIal" relatIOnshIp IS not close enough to render a person mappropnate to parttCIpate tn a selection comrruttee Slmdarly, there can be no findmg of bias wtthout any concrete tndtCIa that the Dtstnct Manager had any form of bias for or agamst any of the candidates Further, the evtdence disclosed that the two members of the panel who have been accused of bias actualJy scored the gnevors hIgher than the one panel member who was conSIdered by the Umon to be ImpartIal For all these reasons, the Umon has failed to establish that thIS selection process was conducted wtth any bIas or bad faIth stigma. , - 27 - The more complex questIon tS whether the selectIon process was conducted In a manner that complIes wIth ArtIcles 21 5 and 21 9 of the collectIve agreement. The partIes agree that the selectIOn process IS governed by a threshold clause The collectIve agreement does not permIt compansons of qualIficatIons between qualIfied candIdates It IS agreed by the partIes that the senIor applIcant wIll be awarded the posItIOn so long as s/he IS qualIfied, no matter how much better qualIfied others may be GIven tlus contractual context, the UnIon quenes the necessIty for IntervIews and prefers the Employer's prevIOus practIce of merely checkIng the candtdate's work hIstory and manager's evaluatIOns to determIne If there tS any reason why a senIor applIcant would not be qualIfied for promotIOn. Nonetheless, the UnIon acknowledges that the Employer does have a nght under thIS collectIve agreement to use an IntervIew as a method of determInIng qualIficatIons Thts IS an appropnate approach for the UnIon because the collectIve agreement does not prevent the Employer from InItIatIng thIS methodology The questIOn then becomes how should the IntervIew be utIlIzed? Some reference to JUrisprudence may be helpful I agree WIth the approach taken In the Corporation of Ottawa case, supra, where arbitrator Jane DevlIn concluded at page 23 In thIS regard, It IS now generally accepted that absent a restnctlOn In the collective agreement, an Employer may properly reqUire prospectIve applIcants to submIt to a test to demonstrate theIr qualIficatIons for a pOSItIOn. Tests of applIcants' qualIficatIOns, however, must be admInIstered faIrly and WIthout bIas and, In thIS regard, It has been suggested that a number of crltena ought to be conSIdered These constst of (1) the reason for the InstItutIOn of the test, (2) the adequacy of preparatIOn for the test afforded to applIcants, (3) the adrrumstratlOn of the test; (4) the relIabilIty of the markIng of the test; and finally, (5) the relevance of the test to the work. to be performed . - 28 - GIven thIs gUidance, It IS useful to review how thIs employer's procedure has met the cntena set out In the City of Ottawa case, supra. The Reason for the InstitutIOn of the Interview The Employer's evtdence was that the prevtous system was successful 99% of the tIme In findIng sUitable candtdates for promotion If someone was promoted who could not fulfil the expectatIOns, s/he could be returned to the bargaInIng UnIt withIn the three month "probationary" tIme But the Employer wanted to InstItute the Interview to both weed out Inappropnate management styles and to Identify the "hungry" or hIghly motIvated candidates ThiS makes good organIzational sense Further, It IS wIthm management's prerogative to set certam spectfied cntena for a positIOn. ThiS, In turn, creates a responsibilIty for management to deSign a "test" or IntervIeW process that Identifies and evaluates such cntena. However, the Employer cannot be faulted for ItS deCISIOn to Institute the process of an Interview as part of tts admmtstratlOn of selectIOns for promotIOns Adequacy for the PreparatIon for the Test Afforded to the ApplIcants In thIS regard, the Employer cannot be faulted CandIdates were told In advance that there would be an mtervlew and were made aware of the fact that their success would depend on thetr performance at the Interview They were also told In a baSIC form how the IntervIew would be conducted There were no surpnses for candidates In thiS process - 29 - AdmInIstratIOn of the Test The IntervIews were conducted well In many ways All candIdates were treated the same, asked the same questIons by the same panelIsts and ultImately gIven several opportumtles to answer the questIons Any problems that may have developed In the course of an IntervIew, such as the InItIal reluctance to gIve Mr Currans a chance to have some of the questIons repeated, were ImmedIately rectIfied Therefore, It cannot be Said there were any problems wIth the way the IntervIews were admInIstered The RelIabIlIty of the Marks The Intervtew panel's sconng methodology tS very problematIC In thts case First, there IS a dIsturbIng conflIct In the eVIdence In tlus key area between the testImony glVen by Ms Rtchardson-Norns and that glVen by Mr Marcotte Both were credible wItnesses and appear to be honest. Ms RIchardson-Noms saId that there was no dISCUSSIon or adjustment of any of the marks after each candIdate was IntervIewed. Mr Marcotte's eVIdence was qUIte dIfferent In that he described how the panelIsts each added up theIr marks and then dtscussed the marks Then the marks were adjusted In an effort to aclueve consIstency Mr Marcotte's eVIdence IS more consIstent WIth the documentary eVIdence wluch shows that scores were adjusted as he suggests The dIfference In the eVIdence IS sIgmficant In that It leaves tlus arbItrator WIthout clear and relIable eVIdence regardIng the method of evaluatIOn and sconng. Clanty of such eVIdence would be the least that would be expected of an employer defendIng a selectIOn process I - 30 - But even If Ms R1chardson- Noms' eVidence IS dIscounted as bemg maccurate because of msufficIent or maccurate recall, we are left with Mr Marcotte's eVIdence that the mdIv1dual panel members discussed and then adjusted their scores after each mterv1ew to try to achieve consIstency m marks If thIS evtdence IS accepted, It would seem that the goal of the selection team was to achieve uniformity m sconng among the three panelists Th1S 1S fraught wIth difficulty The purpose of the three member panel may be to try to elirrunate any potentIal for bias caused by famIlianty wIth candidates But the adJustmg of scores mmlmIzes the mdtvlduallmpact of each panelist, dIscounts theIr mput and reduces the value of a three member team. Further, there IS no mtnnsIc value m unIforrruty of scores Very disparate scores may sometimes Signal that someone dId not fully comprehend an answer But It may also sIgnal legItimate dtsagreement of a balancmg of perceptIOns Adjustments may well be appropnate once clanficatlOn IS achieved. If Mr Marcotte's eVIdence tS accepted, tt must be concluded that the scores were adjusted for the sole purpose of acluevmg umformltv Tlus depnved all the candIdates of the effect of three Judgments ThIS negatively affects the reliability of the ulttmate score attributed to each candtdate Further, treatment of the "deemed pass mark of60%" IS also problematIc The eVIdence of Mr Marcotte shows that management dectded that a pass of 60% would mdIcate a "qualified" candtdate The mtervIew process YIelded five senior candtdates who were unable to achIeve even a bare pass Two of these candIdates had performed the very tasks bemg tested wtth demonstrable success m the past Management's response to the fact that no one was able to pass by the set standard was to simply lower the pass grade to a pomt that captured the top two candidates No explanation was offered for the 5% drop ! other than the fact that the pass level has never been reduced by greater than 5% m the past I - 31 - AgaIn, tills approach IS unacceptable The scores ytelded no one over a passIng grade from a field of five semor candIdates When thIs occurs, there are several possible alternatIve approaches that could be tak.en. One IS, as has been done In the past, to sImply rerun the competItIOn on a much broader geographtcal area. Another approach would be that the IntervIew panel could redesIgn the IntervIew and sconng methodology and run the competItIOn agaIn amongst the same five candtdates In the hopes of deslgrung a better test Instrument. The Employer should be able to JUStIfy why a pass grade of 60% was set and why a reductIOn of 5% was InstItuted AgaIn, the Employer's eVIdence falls short because no ratIOnale was offered other than past practIce Also, the arbItrator IS left wIth another dIsturbIng dIscrepancy In the eVIdence between Ms R1chardson-Norns and Mr Marcotte because the former recalled no eVIdence or dIscussIOn about seekIng approval and reducIng the passIng grade Tills leaves the arbItrator wondenng whether there ever was a dIScussIon amongst the panel or Just a decIsIOn by Mr Marcotte to seek approval for the lowenng of the passIng level GIven the Inappropnateness of the procedure and the weakness of thIs evtdence, tills arbItrator IS left wIth eVIdence concerrung the passIng mark and the scores willch cannot be consIdered to be relIable, accurate or appropnate In thIS case The Relevancy of the QuestIons to the Work Performed NeIther gnevor challenged the relevance of the questIOns asked In the IntervIew All the questIons are easIly seen to be related to many aspects of the Job of a "C" store manager But the fact that all five candIdates failed the IntervIew sIgnals a real - 32 - dIfficulty wIth the questIOns bemg asked or the answers that were expected If the questIons were an appropnate test of the qualIficatIons to perform the Job, then the result suggests that none of the candIdates were qualIfied and therefore none should have been promoted Yet the Employer was prepared to promote the top two achIevers dunng the mtervlew GIven the past performance appraIsals and achIevements of all the candIdates, the fact that all failed IS surpnsmg and was unexpected even from Mr Marcotte's pomt of Vlew On the other hand, If the questIons faIled to elIctt the specIfic type of qualIficatIons that management was seela.ng, then the mtervlew and ItS questIOns must be consIdered to have been flawed For an mtervlew and ItS questIOns to be deemed appropnate m a threshold selectIon process, the questIons must be shown to be able to elIcIt the qualIficatIOns management has desIgnated as necessary for promotIOn and for performance m the Job The questIons m these mtervlews may have been related to the Job to be performed, but It tS dIfficult to see how they would elICIt the type of candIdates that Mr Marcotte was seekmg. For all the reasons mentIoned above It must be consIdered that the mtervIew, although conducted m good faIth and wIth good mtentlons, has not been establIshed to have been admmIstered faIrly The gnevors' case should succeed for these reasons But the sItuatIon also demands attentIon be gIven to the way the Employer utIlIzed the mtervlew process Itself to gIve gUIdance to the partIes m the future The Employer used the Intervtew to determme the results of the selectIon process It was the sole factor used bv tills emplover to decIde between the five candIdates Pnor to the mtervlew, management had reVIewed theIr personnel files and annual appraIsals There was no reason eVIdent to the Employer whIch would stand In the way of promotIons The Employer essentIally used the intervIew as the sole deternurung I . - 33 - factor to assess "qualificatIons" In the Employer's VIew, If the candIdate passed the mtervlew, s/he would be consIdered qualIfied and then the semor passmg candidates would be awarded the Job If the candIdate dId not pass the mtervlew, then s/he would essentIally be dIsqualified from the promotIon opportumty The cases cIted by the Umon are examples of the well establIshed pnnclple that an employer may utIlize a test or an mtervlew m a collectIve agreement wIth a threshold test. But the employer IS not entItled to Ignore other eVIdence that may be relevant. Other factors must be conSIdered, mcludmg related expenence, actmg expenence m the Job m questIOn, annual performance evaluatIOns, related courses that have been taken and the entIre personnel file, mcludmg both positIve and negatIve mdlcators The danger of relymg upon the mtervlew as the sole determmmg factor at the end of the selectIOn process IS that tt necessarily forces the selectIOn panel to evaluate a candIdate's abilIty to perform at an mtervlew, not necessanly hIs/her abilIty to perform the Job m question. Further, It tends to gIve the appearance of making a "threshold" selectIOn process seem to be more lIke a competttIon. Finally, the mtervlew becomes a tool to weed out otherwIse appropnate candIdates, rather thi\n a tool to assess thetr qualIficatIOns In the case at hand, the Employer's process resulted m the selectIOn panel bemg left wIth only the mtervIew as a selectIOn tool In effect, It became an elImmatlOn tool The mtervIew panel was gIven five candIdates whose employment hIStOry showed no reason for them to be demed a promotIOn. The selectIon panel had been gIVen no access to the employment lustones and expenences of the candidates It IS faIr for an mternal candIdate to assume that the panel IS or wIll make Itself aware of the work hIStOry wltlun the mstltutlon. The mtervIew can then be utIlIzed by a candidate to hIghlight hIs/her expenence and demonstrate how It could assIst III the performance of the deSIred Job The - 34 - candidate should not have to use an Inter,new to relay basIc information to the panel about ills/her the work illstory In the institution. The most glanng eVidence of the difficulties In the Employer's approach In tills case IS the fact that Mr Marcotte made ills decIsion wIthout any knowledge that either gnevor had acted as a "e" Store Manager In the very Rockland store to willch they were seekmg to be promoted Tills IS an extremely relevant fact that should have been considered and weighed when deciding If a candidate was qualIfied to perform the Job It IS true that management did give some attention to the candidates' personnel files and prevIous expenence In that no candidate would have been selected for an interview If problems or disqualIficatIOns had become apparent from a review of the files But that IS msufficlent. The Employer IS entitled to screen who wtll be mtervlewed But thereafter the Informatton still remalOs relevant and remains a necessary conSideration or factor that must be conSidered by those people With the responsibilIty of determmmg qualIficatIOns for promotion The Employer's failure to allow the selection panel to conSider all relevant factors amounts to a VIOlation of Article 21 5 of the collective agreement F or all these reasons, It must be concluded that the Employer has VIOlated the collective agreement The only questIon that remams IS remedy Remedy Arbitrators are qUIte properly reluctant to order that a person be placed directly In a promotIOn case The role of an arbitrator IS not to make deCISions for management or to weigh or evaluate employees' qualIficatIOns That IS a management . - 35 - prerogatIve Tills arbItrator IS also mmdful of the fact that the Dlstnct Manager had senous and honest concerns about the gnevors' qualIficatIOns after the mtervlews were conducted. Further, the IntervIew panel was unammous m ItS rejection of the two gnevors' candldacles However, for several reasons umque to thIs fact sItuatIOn, It must be concluded that tills IS one of the rare Instances where the Employer should be ordered to place both gnevors Into the posttlons they seek. First, there IS a threshold test In thIs collectIve agreement. The Umon need only show the gnevors are qualIfied to perform the work In questIon. The uncontradIcted eVIdence IS that both gnevors performed thIs work. on an actmg basts for slgmficant pen ods of time Willie never beIng formally evaluated In that role, they both receIved letters of praIse for jobs well done There IS no eVIdence of any dIfficulties In thetf job performance m the actmg roles Secondly, nothmg In thetr eVIdence or thetr personnel files revealed any reason to disentitle them or render them unqualIfied for the pOSitIons EssentIally, the Umon has made out a prima facie case of qualIfications that the Employer was only able to counter WIth the results of a flawed mtervlew process Tillrdly, there would be grave dIfficulties In dlspensmg a faIr rerun of thIs competitIon The Incumbents have been m place for a long time, smce the early part of 1997 It would be VIrtually tmpossible to replIcate the cIrcumstances that eXIsted at the tIme of the ongmal selectIOn process While that IS true m any promotIOnal gnevance where an expedited arbitratIon process IS not utilIzed, the dIfficulty In deslgmng an mtervlew or selectIon process that Ignores the last 18 months' expenence gamed by the - 36 - Incumbents outweighs the InclInation to allow the Employer to redo a process In a threshold case wIth eVIdence as strongly In favour of the gnevors as IS present In tills case Finally, Article 21 9(a) cannot be Ignored. That article shows the parties' wIllIngness to allow a person up to three months to perform the reqUIrements of the higher posttlon In a satisfactory manner This IS what the parties' called the "probatIOnary penod" throughout tills case That affords both parties protection In the admmlstratlon of the clause It would allow the gnevors to assume their responslblltty and take on the assignment If It does not work to the satisfactIOn of the Employer, the gnevors understand that they would be reclassified to their prevIous classificatIOn. Because of all these unusual reasons, It IS appropnate to order the Employer to place the gnevors In the positIOn of "C" Store Manager at the Rockland and Casselman stores as soon as practicable The Employer IS ordered to do so Further, the gnevors are entitled to any compensation that they may have lost as a result of the breach of the collective agreement. Further, I declare that the use of the Intervlew as an ultimate or sole selection factor IS Inappropnate and In violatIon of this collective agreement. While the Employer IS entitled to utilIze an Interview In the selection process, the Employer IS also reqUIred to consider other factors In determInmg qualIfications for employment. Those other factors which must be considered must Include annual performance appraisals, references from tmmedlate supervIsors, dtsclplme and attendance records, past expenence wIthm the LCBO and elsewhere and other related and relevant mformatlOn that candtdates should be encouraged to place before the selectIOn panel I shall remam setzed WIth the Implementation of thIS award should the parties reqUIre any further assistance - 37 - In c1osmg, I thank counsel for theIr professIOnal and expedItIouS handlmg of tills complex and Important case for the partIes DATED at Toronto, Ontano thIS~ day of July, 1998 v/l