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HomeMy WebLinkAbout2004-1856.Baker.05-10-03 Decision "'- Crown Employees Commission de ~ Grievance Settlement reglement des griefs Board des employes de la ~ Couronne Suite 600 Bureau 600 Ontario 180 Dundas S1. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. : (416) 326-1388 Fax (416) 326-1396 Telae. : (416) 326-1396 GSB# 2004-1856 UNlON# OLB464/04 V IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN 0'- B ~'-'I6~~olf Ontario Liquor Boards Employees' Union (Baker) Union -- - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer ;BEFORE Michael V. Watters Vice-Chair FOR TUJ:!; UNION E. A. Schirm Koskie Minsky LLP Barristers & Solicitors FOR THE EMPLOYER M. Horvat Ogilvy Renault LLP Barristers & Solicitors HEARING February 15 and July 8, 2005. . 2 .. Decision This proceeding arises as a consequence of the Employer's decision to not award the grievor, Mr. Timothy Baker, the full-time position of Quality Control Logistics Representative at the Retail Service Centre in London, Ontario. The position, instead, was awarded to Mr. Tim Goulden. Mr. Goulden attended the hearings and was offered the full opportunity to participate in same. He declined this opportunity and was content to let the Employer defend the approach used in the selection process. Mr. Goulden was not called as a witness in this case. The relevant provision of the collective agreement is article 21.5(a), which reads: Where employees are being considered for promotion, seniority will be the determining factor provided the employee is qualified to perform the work. The grievor and Mr. Goulden both have a seniority date of January 1,2003. The grievor, however, is treated as the more senior employee by virtue of him having a lower employee number. The Job Posting dated April 16, 2004 describes the position of Quality Control Logistics Representative as follows: "Under the general supervision of the Manager, Quality Services, Head Office, the position is responsible for the following duties: ensure suspect products are held in the warehouse, corrected, returned, destroyed, or released for distribution in a timely manner; co-ordinate movement of inventory to and from third party warehouses; prepare documentation to facilitate shipping and receiving; confirm quantities, review any corrective work performed; identify, isolate, and report defective and non-compliant product; initiate product holds; initiate all functions associated with Return/Destruction Authorizations and IQAR Inventory Adjustment; initiate actions to respond to warehouse inspection and corrective action requests; develop and document new procedures/processes related to the Quality Control function; inspect, spot-check, and monitor product; - initiate shipping container reviews on incoming products received at the facility per established standard operating procedures; ensure proper stock rotation of date sensitive products; identify age of product upon receipt of shipments and interpret product date code infuullation; process breakage and salvage operations in accordance with established procedures within the facility. Perform other duties as assigned." The Job Posting listed the following qualifications for the position: - 3 "Able to work under minimal supervision, this position requires product quality and control experience, excellent knowledge of Logistic Retail Support Centres internal operations, processes, and controls; superior written and verbal communication skills; excellent organizational, interpersonal, leadership, analytical, and problem-solving skills; strong product knowledge obtained through the completion of LCBO Product Knowledge Correspondence Course Level I with a commitment to obtaining Level II and III or equivalent; compelling customer service skills; demonstrated knowledge of LCBO Packaging Standards and Guidelines for Chemical Analysis and CALJ Product Identification Standards; excellent knowledge and ability to apply mainframe and personal computer applications, i.e., Access, Excel, Word, Outlook, WCSS, etc.; demonstrated understanding of ISO 9001: 2000 standards; physical ability to lift and carry cases weighing up to 60 lbs." Prospective applicants for the position were also asked to note the following: . "Applicants will be considered in the following order: Eligible PFT employees, followed by Seasonal and Casual employees at the London Retail Service Centre. . Candidates must meet the following minimum criteria in order to (be) given further consideration: (a) past satisfactory discipline and attendance record; (b) past satisfactory work record. . Candidates will be selected for assessment based on their resume detailing background and experience in relation to criteria as described in qualifications. . Candidate's assessment may include an interview, possible job-related testing, work performance, supervisor's evaluation, and attendance. . This position is in the Sales & Marketing Division, it is not entitled to warehouse work regularly performed by Logistic employees." The grievor was the sole witness called to present evidence on behalf of the Union. He commenced employment at the LCBO in the London Warehouse in June, 2002 as a fixed term employee. He became a casual employee at the end of August, 2002. The grievor started working in the Shipping Department as a seasonal employee as of December, 2002. He was working in this department as of the date of the job posting in April, 2004. I note that Mr. Goulden was also a seasonal employee at that point in time. Evidence for the Employer was presented by Mr. Leonard Franssen, Ms. Lori Thorpe, and Mr. Mike Moody. Mr. Franssen is the Manager of Quality Services in the Quality Assurance " 4 - Department. He works out of the Employer's Head Office in Toronto, Ontario. The person in the = position here in issue reports to Mr. Franssen. Mr. Franssen has worked in the field of Quality Control, both as a bargaining unit member and as management, since 1989. Ms. Thorpe serves as a Human Resources Advisor for the Western Region. In this capacity, she is involved in approximately five (5) selection processes each year. She does not, generally, become involved in matters relating to the London Warehouse. In this instance, however, Ms. Thorpe was asked to fill-in on the selection panel for one (1) of her colleagues in the Human Resources Department at the Regional Office. Mr. Moody is the Manager of Operations in respect of the afternoon shift at the London Warehouse. He has been in this position for over a year-and-a-half. He was previously a Supervisor and, before that, a member of the bargaining unit. He has been with the LCBO for some twenty-five (25) years. At the time material to this dispute, Mr. Moody was the direct Supervisor of both the grievor and Mr. Goulden. He had also worked with both employees while he was a member of the bargaining unit. Mr. Franssen advised that the position of Quality Control Logistics Representative was a new position at the time of the posting. He noted that while the person selected would perform the required duties within the Logistics Division at the London Warehouse, he or she would report directly to him in Toronto. The individual would also be expected to work closely with other Quality Services staff at Head Office with respect to planning and scheduling activities related to the quality control function at the above-mentioned Warehouse. Mr. Franssen observed that the Quality Control Logistics Representative is the only quality control position at the Warehouse. He described the position as "our eyes in the field." In this regard, Mr. Franssen stated that, "Logistics' mandate is moving out inventory to the Stores; our duty is to hold back inventory that is not saleable." Mr. Franssen testified that the substance of the Job Posting was premised on the Position Description for the Quality Control Logistics Representative. He reviewed this latter document - 5 during the course of his evidence. After considering Mr. Franssen's evidence, in conjunction with a comparison of the Job Posting and the Position Description, I accept that the two (2) documents are consistent with respect to the duties of the job and the qualifications required to perform same. The Position Description is appended to the body of this Award. As stated on the Job Posting, applicants for the position were required to submit their resumes to Human Resource Services at the LCBO Western Regional Office by the closing date of April 29, 2004. The grievor and Mr. Goulden both satisfied this requirement. The grievor's resume listed the duties he had previously performed at the London Warehouse. It also outlined the duties he had performed for two (2) prior employers, Contran Manufacturing and McDonald Mail Service. Mr. Goulden's resume similarly described his employment history with the LCBO and with three (3) prior employers, No-Sag Spring Co., Audio Video File, and Future Shop. Mr. Franssen testified that he reviewed both resumes. This review led him to conclude that the grievor, at best, had "very minimal, marginal qualifications" for the position. In contrast, Mr. Franssen was left with the impression that Mr. Goulden's prior experience constituted a better match vis-a-vis the duties of, and qualifications for, the posted position. It is unnecessary to address the content of the resumes in further detail. The documents were clearly used as a screening device to determine which of the applicants would be "selected for assessment." Neither the grievor nor Mr. Goulden were excluded from the process by virtue of the resumes. Rather, they were subjected to the selection process described below. Additionally, it is clear from Mr. Franssen's evidence that the resumes were not factored into the ultimate assessment of the respective applicants. In his words, the fact that Mr. Goulden's resume was better than the grievor's "did not come into play." There were four (4) applicants for the posted position, these being the grievor, Mr. Goulden, Mr. David Groke, and Ms. Joanne Tingle. All of the applicants were interviewed on June 11, 2004 by a selection panel comprised of Mr. Franssen, Ms. Thorpe, and Mr. Greg . 6 ~ - Stanley. Mr. Stanley is another Supervisor at the London Warehouse. He did not testify in this proceeding. A Candidate Rating Form was prepared for use by each panellist at the interview. The nine (9) page Form set out the following questions, which were to be answered by the applicants: 1. Describe any computer experience that you have acquired that qualifies you for this position. Include applications used, skill level, frequency of use, and training; 2. Describe any experience you have in each of the following areas, which you feel qualifies you for this position: (i) written and verbal communication skills; (ii) teamwork and leadership skills; (iii) organizational, analytical, and problem-solving; (iv) interpersonal, negotiation skills, and customer service skills; 3. Describe any experience, training or knowledge that you have acquired that qualifies you for this position. Supplementary if required: What experience do you have with workplace safety? 4. In summary, what requirements are detailed in the LCBO Packaging Standards? In summary, what requirements are detailed in the CALJ Product Identification Standards? 5. What codes or other information is available on shipping containers or selling units that would assist warehouse staff in identifying the age of product? 6. You have received an e-mail from Quality Control requesting a specific Lot Number of a product being placed in physical hold. Describe the steps you would take to comply and respond to this request; 7. An agent telephones you and is irate and very demanding. A product is in hold pending corrective action and the agent would like to expedite its release. How would you handle the call? 8. Briefly describe the fundamental principles and key system elements of ISO 9001:2000 quality management system. Panellists were then instructed to evaluate the candidate's communication skills according to the following criteria: express their thoughts clearly; present themselves in a positive manner; listen intently; demonstrate interest/enthusiasm and maintain eye contact; use appropriate business language in a professional manner; avoid using slang or other unprofessional language? . 7 The above questions were prepared by Mr. Franssen with the assistance of a representative from Human Resources. Mr. Franssen advised that these questions were previously used in a posting for the same position in Toronto. For seven (7) of the eight (8) questions, panellists were provided with Rating Criteria on the Candidate Rating Form. Generally, the criteria provided them with information that would be included in an appropriate answer. There was also an area on the Form for the panellists to make notes of the candidate's response. Lastly, there was a spot on the Form for panellists to mark a score out of ten (10) for each of the eight (8) questions and the assessment of communication skills. To assist with the evaluation process, the following rating scheme was provided on the Form: Excellent 10-9; Good 8-7; Fair 6-5; and Poor 4-0. An applicant's interview performance was assessed out of a total of ninety (90) possible marks. Applicants were asked the above questions by the panellists on an alternating basis. Each panel member recorded the responses on the Candidate Rating Form and assigned a score out of ten (10) for each question. At the conclusion of each interview, the panel members totalled their scores. They then engaged in a group discussion about the respective scores given to the applicant. Mr. Franssen testified that the panel looked at the marks assigned for each question, and at the overall score, to determine if there were any significant discrepancies. He made the following comment about this part of the process: "we wanted to ensure what we recorded was accurate, that we all heard the same things, and that our assessment was based on what we heard." Mr. Franssen stated that this was an opportunity for each panel member to listen to the comments of their colleagues, and to determine whether he or she had missed anything. He acknowledged that an applicant's score could be adjusted as a consequence. He asserted that "no one was forced to change their marks" and that, based on the discussion, a panellist might opt to "voluntarily" adjust a mark. Mr. Franssen denied, however, that the post-interview discussion was designed to arrive at one (1) overall, or consensus, score. Ms. Thorpe also testified that the . 8 purpose of the exercise was not to arrive at a consensus score. She added that these discussions likely included a consideration as to whether each applicant had the ability and qualifications to perform the work. The scores assigned by the panel in respect of the interview of the grievor and Mr. Goulden may be summarized as follows: Grievor Mr. Goulden Mr. Franssen 33 47 - - 90 90 Ms. Thorpe 37 48 - - 90 90 Mr. Stanley 32 54 - - 90 90 Overall average 37.8% 55.2% (as a percentage) At the hearing, a considerable amount of evidence was adduced with respect to the following matters: (i) the scores that Mr. Franssen and Ms. Thorpe awarded for each question and their reasons for doing so; (ii) a comparison of the marks they gave to the grievor and Mr. Goulden; and (iii) the variance in their scoring of certain questions. It is unnecessary to reproduce all of this evidence in the body of this A ward. In my judgment, the differences in their scoring, for the most part, simply reflects what routinely occurs when applicants are assessed by a selection panel comprised of three (3) members. Ultimately, I am unable to fmd that the variance in the scoring is determinative ofthe instant dispute. I note from the evidence that Ms. Thorpe adjusted her scoring of the grievor downwards by a total of eight (8) marks across four (4) questions. Ms. Thorpe testified that she was unable to . 9 recall why the changes were made. She suggested that one (1) of the changes might have reflected a numerical error on her part. She also agreed, in cross-examination, that it was possible the scoring was changed as a result of the post-interview discussion. In this regard, Ms. Thorpe speculated that she may have, initially, been overly generous in her marking, and may have given credit for something that did not warrant a mark. Ms. Thorpe acknowledged that she did not make any changes in the scores she assigned to Mr. Goulden. Before turning to the next component of the selection process, I wish to state my conclusions with respect to three (3) issues. First, I am satisfied that the questions asked in the interviews were reasonably related to the duties and responsibilities of the Quality Control Logistics Representative position. Second, I accept that the panel did not resort to consensus scoring. I have been persuaded that the post-interview discussion around each applicant was intended to identify any material discrepancies in the scoring and to ensure that there was a solid basis for the actual marks given. Lastly, there is insufficient evidence to establish that Ms. Thorpe adjusted the grievor's scores downward in order to prejudice his application and/or to promote Mr. Goulden's application. It would have been helpful, however, if Ms. Thorpe had made a notation on the Candidate Rating Form to explain or clarify the reason for any changes. Immediately following the interviews, the applicants were required to take two (2) written tests, these being a Product Identification and Packaging Standards Test and a Product Knowledge Test. The former test was out of a total of forty (40) marks, while the latter was out of twenty-five (25) marks. Both tests were prepared by Mr. Franssen. The Product Identification and Packaging Standards Test was comprised of seven (7) questions. The questions may be summarized as follows: 1. Ten (10) acronyms that appear on LCBO or CALJ packaging standards were listed. Applicants were asked if the defInition beside the acronym was true or false; . 10 2. Applicants were provided with eleven (11) statements relating to shipping - containers used to package consumer selling units shipped to the LCBO and were asked if each statement was true or false; 3. Applicants were asked to list five (5) markings/declarations that must appear on the label of a bottle of wine sold by the LCBO; 4. Applicants were asked to describe two (2) acceptable formats for product date codes that must be shown on beer and bag-in-box products and to give an example of each; 5. Applicants were given a twelve (12) digit UPC barcode and were asked to match each of the four (4) sets of numbers to a label; 6. Applicants were asked to describe four (4) different types of tamper-evident closures that may be used for products sold by the LCBO; 7. Applicants were asked to name the type of SCC-14 bar code depicted on an example, which was provided. Mr. Franssen testified that in preparing this test, he focused on information he thought would be important for a person in the posted position to have knowledge of. He added that it was his way of testing whether the applicants had the "demonstrated knowledge" required by the posting. The grievor scored fifteen (15) out of forty (40) marks on the Product Identification and Packaging Standards Test. Mr. Goulden's score was twelve (12) out of forty (40). Mr. Franssen agreed, in cross-examination, that neither applicant received a passing grade of fifty percent (50%) on this test. The Product Knowledge Test consisted of a series of twenty-five (25) questions. The applicants were provided with four (4) answers and were asked to circle the correct one. Mr. Franssen repeated that the test was his way of gauging whether the applicants possessed demonstrated knowledge in the area. The grievor scored eight (8) out of twenty-five (25) marks on the Product Knowledge Test. Mr. Goulden's score was twelve (12) out of twenty-five (25). Again, Mr. Franssen acknowledged that neither applicant passed the test. He expressed the opinion, however, that it was not fatal that they both failed to achieve fifty percent (50%) of the - 11 allotted marks on both tests. In his view, the tests were simply a one-third (t rd) part of the selection process. I note, at this juncture, that neither the grievor nor the Union challenged the appropriateness of the questions asked on the tests. After the interviews and the tests were completed, Mr. Franssen asked Ms. Thorpe to perform a reference check for all of the applicants. Ms. Thorpe, as a consequence, subsequently spoke to Mr. Moody by telephone about both the grievor and Mr. Goulden. As previously mentioned, Mr. Moody was well acquainted with both applicants and was their direct Supervisor at the time. Ms. Thorpe utilized an Employment Reference Check form to structure her discussion with Mr. Moody. The form is designed and intended to elicit the following information about an applicant: (i) position held by applicant and main responsibilities and/or major projects; (ii) strengths; (iii) areas for improvement; (iv) interpersonal/communications skills; (v) work habits, including any problems experienced with respect to dependability, attendance, or performance on the job; and (vi) specific information relevant to the selection criteria. Ms. Thorpe solicited Mr. Moody's input on these items and recorded his answers in respect of the grievor and Mr. Goulden on separate Employment Reference Check forms. She also asked Mr. Moody if he would recommend the grievor and Mr. Goulden for the position in issue. Lastly, Mr. Moody was asked to provide an overall rating for each applicant. The Employment Reference Check form contains the following options: 1. Excellent; 2. Very Good; 3. Satisfactory; 4. Requires Development; and 5. Unsatisfactory. Ms. Thorpe reviewed all of these options with Mr. Moody prior to his selection ofthe appropriate rating. . 12 Mr. Moody testified that he had seen the Job Posting for the Quality Control Logistics Representative, but did not review it in conjunction with his involvement in the selection process. It was his evidence, however, that he met with Mr. Franssen about a month prior to the posting and that Mr. Franssen then told him what he was looking for in the position. Mr. Moody explained that he already had some familiarity with the type of work to be performed in the new position, as he had previously performed some of the required tasks. Mr. Moody was also aware, at the time of the reference, that the position would report to Head Office and not to him, and that the occupant in the position would have to work independently. Mr. Moody's evidence as to the information he communicated to Ms. Thorpe about the grievor may be summarized as follows: (i) he described what the grievor was doing on the afternoon shift as a Shipping Clerk; (ii) he identified the grievor's strengths as "punctual-excellent attendance-not afraid to do things-will look for work when done other things"; (iii) he noted the following in terms of areas for improvement: "computer skills- not the best; decision making-would prefer to be guided." At the hearing, Mr. Moody testified that this was a concern because the grievor was not inclined to show initiative or assume responsibility for making decisions; (iv) he described the grievor's interpersonal/communication skills as follows: "shy side, doesn't like confrontation,-will say one thing to me and different to other to avoid, quiet." At the hearing, Mr. Moody expressed the opinion that the grievor was "more of a follower than a leader." It was his observation that the grievor liked to get direction from co-workers. He viewed this as significant, as the person in the posted position is required to work independently and to make their own decisions with little or no supervision; (v) he advised that he had not experienced any problems with the grievor in respect of dependability, attendance, or performance on the job. He added, "sometimes stress when learning-very particular"; (vi) when asked if the grievor could work alone, Mr. Moody advised Ms. Thorpe that he thought the grievor could do so, but that he would sometimes "wonder when bored"; (vii) when asked if he would recommend the grievor, he advised Ms. Thorpe, as follows: "If my choice, give an opportunity, but not one-hundred percent . 13 (100%)." At the hearing, Mr. Moody testified that the grievor would not have been his first choice but, rather, would have been his second choice from amongst the four (4) applicants. It is clear that he thought Mr. Goulden was the "better" candidate for the position; and (viii) he gave the grievor an overall rating of "3-Satisfactory." At the hearing, Mr. Moody testified that the grievor could probably have performed "certain aspects" of the job of Quality Control Logistics Representative at the time of the Job Posting. By this, he meant that the grievor was capable of performing those general duties common to all employees working in the Warehouse. Mr. Moody testified, however, that he did not believe the grievor would then have been able to perform the "more specific aspects of the job," such as assisting with the preparation of an annual budget, planning, and prioritizing work activities, and liaising effectively with Quality Control Logistics and Head Office. Mr. Moody doubted whether the grievor could work under minimal supervision. It was his assessment that the grievor required on-going supervision. Mr. Moody also expressed the opinion that the grievor lacked the leadership skills required in the position. Further, he was not convinced that the grievor had the requisite knowledge of the Logistical Retail Support Centre's internal operations, processes, and controls. Mr. Moody's evidence as to the information he communicated to Ms. Thorpe about Mr. Goulden may be summarized as follows: (i) he described the nature of Mr. Goulden's job at the Warehouse; (ii) he described the strengths of Mr. Goulden in the following terms: "independently-no supervision, punctual, self-starter, excellent computer functions, work extra to improve"; (iii) he stated that he could not think of an area in need of improvement; (iv) he described Mr. Goulden's interpersonal/communications skills as follows: "excellent-both management and peers, concise-asking questions and answers, verbal and written"; (v) he advised that he had not experienced any problems with Mr. Goulden in respect of dependability, attendance, or performance on the job; 14 (vi) he advised that Mr. Goulden could work alone; 0 (vii) when asked ifhe would recommend Mr. Goulden, he told Ms. Thorpe that he would and that Mr. Goulden would be his fIrst choice; and (viii) he gave Mr. Goulden an overall rating of "2-Very Good." In cross-examination, Mr. Moody acknowledged that Mr. Goulden would not be able "to jump in and do all aspects" of the job of Quality Control Logistics Representative. He expressed the opinion, however, that Mr. Goulden could do more of the job than could the grievor. In this regard, he referenced telephone communications, prioritizing work activities, planning of the workday, and movement and assessment of inventory. Mr. Moody maintained that in arriving at his overall rating of Mr. Goulden, he did not compare him to the grievor. He asserted, rather, that he compared the grievor to the qualifications of the job. I note that Mr. Moody's involvement in the selection process was limited to the references he provided to Ms. Thorpe. Mr. Franssen received the Employment Reference Check forms on or about June 15, 2004. It was the substance of his evidence that he did not attempt to interpret, question, or dispute the data obtained from Mr. Moody. Mr. Franssen acknowledged that the Satisfactory rating given to the grievor by Mr. Moody represented "a pass," given that it was subsequently accorded a mark of five (5) out often (10) pursuant to a rating scale contained on the Bargaining Unit Selection Process Candidate Results form, hereinafter referred to as "the Matrix." He observed, however, that the threshold of fifty percent (50%) was used as a measure of qualifications across the selection process as a whole, rather than for each distinct component of the process. The Employer, in this instance, elected to give equal weighting to the three (3) components of the selection process. More specifically, the scores given to an applicant for the interview, the testing, and the references-performance appraisal were each to account for thirty- three percent (33%) of the final score. For purposes of the assessment, scores for each of the . 15 components were translated into a percentage. One (1) aspect of this conversion exercise merits mention. As noted above, the grievor was accorded a mark of five (5) out of ten (10) for his overall rating of Satisfactory. Mr. Goulden, in contrast, received a mark of seven-and-a-half (7- t) out often (10) for his overall rating of Very Good. As a consequence, the grievor was given a weighted mark of sixteen-and-a-half (16-t ) for this part of the process, while Mr. Goulden was credited with a mark of twenty-four and three-quarters (24-t ). The fmal scores were as follows: Mr. Goulden........................... 55.8 % Mr. Baker ...............................40.4 % Mr. Groke............................. 30.62 % Ms. Tingle ............................ 18.18 % Mr. Franssen testified that a score of fifty percent (50%) was used as the benchmark against which to assess whether an applicant was qualified for the job. From his perspective, a score of fifty percent (50%) represented a pass and would demonstrate that an applicant met the minimum qualifications. Mr. Franssen reiterated that an applicant did not have to score.well in all of the components of the selection process. He noted that a poor result in one (1) component could be made up by a better result in another component. He further advised that this method of selection had been used in the earlier posting in Toronto. Ultimately, the Employer concluded that the grievor's total score of 40.4% meant that he was not qualified for the position in issue, and that Mr. Goulden's score of 55.8% indicated that he was qualified for the job. As stated previously, Mr. Franssen acknowledged that both the grievor and Mr. Goulden failed the Product Identification and Packaging Standards Test and the Product Knowledge Test. He agreed that the Employer could, as a consequence, have deemed no one to be qualified and reposted the job in a larger area. It was his evidence that, in this instance, the Employer elected "to go with the candidates who went through the process." I note that the Union does not contest that decision in this proceeding. . 16 The grievor testified about the duties he performed while working for the LCBO as a fixed term, casual, and seasonal employee in the period June, 2002 to April, 2004. These duties included the following: assembly of product; use of a forklift to unload and load product; Breakage Room tasks such as cleaning and repacking damaged product for subsequent return to the Store system; shipping and receiving functions, which necessitated a working familiarity with bills of lading and K-52 forms; related computer work, and maintenance. It was the substance of the grievor's evidence that he possessed the qualifications identified in the Job Posting. His evidence in support of this assertion may be summarized as follows: (i) he previously worked under minimal supervision while a Supervisor with McDonald Mail Service. The grievor testified that in this former position, he supervised approximately one hundred and fifty (150) employees across Ontario and that he was responsible for payroll, billing, scheduling of employee hours, and sorting of parcels for loading onto trucks for delivery. He further claimed that the position required developed organizational skills; (ii) he had started, but not finished, the LCBO's Product Knowledge Course. The grievor acknowledged that when he first saw the Job Posting, he did not know what the LCBO Product Packaging Standards were. He did not make any inquiries prior to, or at, the interview to obtain information about the Standards; (iii) he maintained that he was aware of Logistic Retail Support Centre's internal operations, processes, and controls given his prior experience in the Shipping Department at the Warehouse; (iv) the grievor described his written and verbal communication skills as "pretty good." In a similar vein, he described his interpersonal and leadership skills as "excellent." He stated that he has a good relationship with his colleagues at the LCBO; (v) the grievor testified that he has "a little bit of experience" with problem solving; (vi) the grievor advised that he used the computer and was familiar with the WCSS and ROC systems through his work in the Shipping Department. He stated that he has a personal computer at his residence and that Excel, WordPerfect, and Outlook Express are loaded onto it. The grievor acknowledged that he was "not too familiar" with ISO 900 I: 2000 standards; (vii) the grievor stated that he has the physical ability to lift and carry cases weighing up to sixty (60) pounds. - 17 The grievor agreed that he was given the opportunity at the interview to expand upon what was in his resume, including the extent of his computer skills. He did not recall having to be prompted by Ms. Thorpe or others at the interview, but acknowledged that some prompting may have been done. I note, in this regard, that the Candidate Rating Forms completed by Ms. Thorpe and Mr. Franssen disclose that the grievor was prompted to provide additional information in respect of certain of the questions. The grievor disagreed with Mr. Moody's reference in two (2) respects. Firstly, he disputed Mr. Moody's assessment that he prefers to be guided in terms of decision making. Secondly, he denied that he seeks to avoid confrontation. The grievor did agree that he is not "a computer genius," when shown Mr. Moody's comment about his computer skills not being the best. Counsel for the Union stressed that article 21.5 (a) of the collective agreement is a sufficient ability clause pursuant to which the grievor was entitled to the position, as the more senior employee, provided he was qualified to perform the work. He argued that the selection process under such a clause must focus on whether an applicant, and in this case the grievor, was able to perform the required work. From the perspective of the Union, the process used in this case did not seek to answer this question. Rather, it sought to isolate the best candidate, as if the article provided for a competitive process. On the Union's analysis, the process used by the Employer was flawed. I was urged to conclude that the grievor would have been entitled to the job if article 21.5 (a) had been properly administered. Counsel for the Union was critical of all of the components of the selection process used by the Employer in this case. More specifically, he submitted that the interviews, the written tests, the reference checks, and the grading scheme did not satisfy the requirements for a selection process conducted under a sufficient ability clause. Turning first to the interviews, counsel noted that the panel members did not initially discuss what they were looking for in the answer to each question. Put another way, they did not 18 determine what content in an answer would show that an applicant met the minimum threshold established by the collective agreement. Counsel argued that, as a consequence, the panel assessed which applicant offered the best answer instead of whether the answer disclosed that the applicant was qualified to perform the job. He suggested that each question should have been assessed on a pass-fail basis and that not all of the interviews should have been held at the same time. Counsel submitted that the Employer should have commenced the process with an interview of the most senior applicant. If that applicant failed to meet the minimum threshold in their answers, then the Employer could properly proceed to interview the next most senior person. Counsel advanced the opinion that by interviewing the applicants one after another, it was inevitable that the process would become a comparative exercise. Counsel for the Union observed that the Employer initially thought that the two (2) tests would be a good measure of an applicant's knowledge of product and packaging standards. He suggested, however, that they were treated as "a non-factor," after the grievor and Mr. Goulden failed both tests. In his judgment, the tests were not then "treated as a serious qualification that had to be met." Counsel emphasized that the scoring on the tests, nevertheless, still amounted to one-third ( t rd) of the overall evaluation. He submitted, in effect, that the tests should not have been relied on for the purpose of disqualifying the grievor. Counsel was critical of the Employer for altering its requirements "after the fact." He asserted that, as a consequence, the interview ultimately became the determining factor in the selection process. Counsel for the Union argued that the reference checks, as conducted, reflected the type of comparative analysis that would occur in the context of a competition between applicants. He suggested that Mr. Moody would have recommended the grievor for the position, if the latter had been the only applicant. Counsel stressed that Mr. Moody preferred Mr. Goulden for the job, as he was the "better candidate." He submitted that this was not an appropriate approach to adopt . 19 - when administering a sufficient ability clause, such as article 21.5 (a). Counsel repeated his view that this part of the process should have started with an assessment of the most senior applicant's ability and qualifications. Counsel for the Union asserted that the Employer elected to use the Matrix format only after the scores became known. It seemed to be his suggestion that use of this format was intended to benefit Mr. Goulden and to undermine the grievor's seniority rights. Counsel argued that the use of the Matrix system, as described earlier, reflected "a quantitative approach," rather than an assessment as to whether applicants satisfied the minimum standard of being qualified. By way of example, he noted that the reference check ratings given to the grievor and Mr. Goulden of "Satisfactory" and "Very Good," respectively, meant that they both passed this part ofthe process. Counsel stressed, however, that the grievor received only five (5) marks out often (10), while Mr. Goulden received seven-and-a-half (7 t ) marks. Counsel asserted that, as both applicants passed the reference check, they should each have been accorded a mark of ten (10) out of ten (10). If that had been done, the grievor's total score would have exceeded the fifty percent (50%) threshold. It was the Union's further position that the grievor was qualified for the position of Quality Control Logistics Representative. On this point, counsel referenced the grievor's work history with the LCBO and with his former employers. Additionally, he noted that Mr. Moody was prepared to make a positive recommendation in the grievor's favour. Counsel also referenced the scores given by Ms. Thorpe and Mr. Franssen in the interview component for communication skills. Ms. Thorpe, ultimately, awarded a score of five (5) out often (10), while Mr. Franssen awarded a score of six (6) out of ten (10). Counsel submitted that these scores represented a pass, and evidenced that the grievor possessed the necessary communication skills for the position. He further submitted that the selection process used in this instance failed to 20 properly assess the grievor's organizational, leadership, analytical, interpersonal, customer service, and computer skills. From the perspective of the Union, the grievor possessed sufficient skills in all of these areas to qualify him for the position being sought. For all of the above reasons, counsel for the Union submitted that the grievor should be put into the position, retroactive to the date it was improperly awarded to Mr. Goulden, with monetary compensation for his loss. In the alternative, I was asked to order a re-run of the selection process and to impose any necessary conditions to ensure it would be conducted in accordance with the requirements ofartic1e 21.5 (a) of the collective agreement. Counsel for the Employer, in response, agreed that the senior qualified applicant is entitled to a posted position under the language of article 21.5 (a). He asserted that this provision was properly applied in this case. In argument, counsel focused on the nature of the position, the grievor's qualifications, and the evaluation process. Counsel for the Employer noted that the Quality Control Logistics Representative position was new to the Logistics Centre in London, Ontario. He reiterated that it was a retail position, even though the work was to be performed at the Warehouse. On his analysis, the incumbent in the position directs Warehouse personnel for Quality Control purposes. Counsel stressed that such person must be able to work independently, with minimal supervision, as the direct Supervisor is located at Head Office in Toronto. He also noted that the employee must have the ability to communicate, organize, prioritize, direct others, and to exercise leadership. In counsel's words, these attributes or qualifications serve as "the umbrella" under which the practical job functions, such as breakage, stock, and inventory are performed. Counsel disputed the Union's argument that the Employer engaged in a comparative analysis of the applicants. In his judgment, the assessment undertaken by the panel related to the applicants' qualifications for the job. Counsel observed that the grievor was a short-term employee of the LCBO and that, in the past, he had only performed general warehouse duties. . 21 - More specifically, he had not previously performed any of the new tasks relating to the quality control functions of the position. Counsel relied on Mr. Moody's assessment that the grievor lacked the requisite qualifications to perform the job. He also referenced the fact that Mr. Franssen, the person who created the position, reached the same conclusion. In the final analysis, it was the Employer's position that the Union failed to meet the onus of establishing that the grievor was qualified to perform the job at the time of the posting. It was the position of the Employer that the evaluation process used to assess the applicants was consistent with that described on the Job Posting in that it included an interview, job-related testing, and a supervisor's evaluation. Counsel described the process as "comprehensive," and sufficient to enable the selection panel to make a fair, reasonable, and informed decision as to whether the grievor was qualified to perform the work. He noted that there were three (3) equally weighted components to the process. Counsel submitted that this multifaceted approach was consistent with the jurisprudence developed by the Grievance Settlement Board, and that such approach allowed the Employer to effectively measure the applicants against the position. He strenuously disputed the Union's suggestion that the panel, in effect, compared or ranked the applicants. From his perspective, the fact that all of the interviews took place on the same day amounted to a red herring. Counsel further argued that there was no evidence to suggest that the Matrix Formula was concocted after the fact for purposes of achieving a desired result. He maintained that, in all the circumstances of this case, the interview was not determinative of the ultimate decision. Rather, it represented just one (1) of the components factored into the decision making process. In this regard, counsel claimed that the reference check was an important component as Mr. Moody was best able to assess the applicants' work history and to, thereby, provide valuable input to the selection panel. Counsel acknowledged that personnel files were not accessed by the panel in this instance. He suggested that there would have been little to review, given the relatively short service of both the grievor 22 . and Mr. Goulden, and that this omission was immaterial in view of the supervisory evaluation. Lastly, counsel submitted that the panel was not contractually bound to commence the assessment process with the most senior applicant. He stated that the Union has never complained about the process previously and that to adopt the Union's suggestion would lead to an onerous and unduly protracted method of selection. For all of the above reasons, I was asked by counsel for the Employer to conclude that the selection process was consistent with the requirements of the collective agreement and that the panel properly and reasonably determined that the grievor was not qualified to perform the work of the Quality Control Logistics Representative. He submitted that the grievance should, accordingly, be denied. The following awards were filed with this Vice-Chair in closing argument. OLBEU (Bechard) and LCBO, 0900/97 (Watters); OLBEU (Netta et aU and LCBO. 1404/97 et al. (Mikus); OLBEU (Dver) and LCBO. 506/80 (Saltman); PLBEU (Currans. Chaout) and LCBO. 0923, 0924/97 (Knopf). The parties agree that article 21.5 (a) of the collective agreement is a sufficient ability, or threshold, type of job posting provision, pursuant to which a senior applicant will be entitled to the position provided he or she is qualified to perform the work. The obligation that this type of provision places on the Employer, in respect of the selection process, was described by this Vice- Chair in the following excerpt from Bechard: "As stated earlier, article 21.5 (a) is a sufficient ability clause pursuant to which a promotion must be awarded to the senior qualified candidate. This type of provision, in my judgment, places certain obligations on the Employer in terms of the nature ofthe process it uses to fill job postings. Clearly, the process should be designed to focus on the qualifications of the senior person in respect of her/his ability to perform the duties and responsibilities of the posted position. I am satisfied that the process should, normally, include an assessment by the selection panel of the senior applicant's work history and experience, including a review of relevant performance appraisals, supervisory comments, and disciplinary and attendance records. These sources of information are important because they will likely provide the panel with some insight as to how the applicant might perform . 23 - if placed in the job. More specifically, it allows them to match the employee against the actual job duties and to thereby reach an informed assessment as to whether the person has the needed skill, ability, and experience. Put a slightly different way, I think that a panel places a selection in real jeopardy when it disregards information relevant to the threshold question with which it is seized. I have no doubt the process may include an interview, or test, of the type used here, subject to the caveat that there is a substantial risk such an interview, without more, may be viewed as insufficient in terms of its ability to yield an accurate assessment of the candidate's overall qualifications. Generally, the interview should form part of the exercise rather than being the entire process. In other words, it should not serve as the sole or exclusive measure of an employee's qualifications, especially in situations where other relevant data is readily available. In summary, I conclude that the process should be sufficiently c\JiUprehensive so as to permit the Employer to make a fair, reasonable, and informed decision as to whether the senior candidate is qualified to perform the work. " (pages 34 - 36) As I understand the substance of the Union's position, it is that the Employer in this instance utilized a process that was not designed to focus on the qualifications of the senior person in respect of his ability to perform the duties and responsibilities of the posted position. Rather, from the perspective of the Union, the Employer engaged in a comparative exercise, of the sort that normally occurs under a competitive job posting provision, for purposes of selecting the best applicant and, in so doing, undermined the right accorded to the grievor under article 21.5 (a) to benefit from his greater seniority. As mentioned, the Employer elected to use a score of fifty percent (50%) in the overall process as the benchmark for determining whether an applicant met the minimum qualifications for the job. This form of quantitative assessment is not objectionable, as long as the threshold established is reasonable and the various components leading to the ultimate score permit the Employer to reach an informed decision as to whether the applicant has the requisite skill, ability, and experience to perform the work. The Union, here, did not seriously contest the Employer's decision to establish a threshold for qualifications at fifty percent (50%). I note, in passing, that this was less than the "deemed pass mark" of sixty percent (60%) initially . 24 established in Currans and Chanut. The primary thrust of the Union's argument is that the components of the selection process, either individually or in conjunction, did not provide for a mechanism for the Employer to reasonably and fairly assess the grievor's qualifications to perform the work of the Quality Control Logistics Representative. This submission requires some analysis of the interview, job testing, and reference check components of the process. Additionally, it calls for an assessment as to whether the Employer could properly resort to the Matrix system, as described above, as a valid measure of qualifications. As previously stated, I find that the questions asked of the applicants in the interview were reasonably related to the duties and responsibilities of the posted position. On my reading, the questions were designed to elicit information, which would assist the selection panel in determining whether an applicant was qualified for the position. Additionally, the questions provided an applicant with the opportunity to expand on the nature of his or her past experience, as documented in the resume. I am satisfied that the Rating Criteria set out on the Candidate Rating Form gave the panellists some real insight as to what should be included in a full answer. I also think it likely, on the basis of the evidence presented, that the sufficiency of the answers provided was further addressed in the post-interview discussion. In my judgment, this is not a case where the panel was ill equipped to assess the answers given by the applicants. This conclusion is also supported by the experience of the panel members, particularly Mr. Franssen and Mr. Moody. As a consequence, I do not consider it material that the panel members did not initially discuss what they were looking for in the answer to each question. I have not been persuaded that the panel assessed which applicant offered the best answer and that the process, in substance, amounted to a comparative exercise. Rather, I accept that the panel members evaluated the answers provided for purposes of measuring whether an applicant was qualified to perform the requisite work. : 25 I do not accept the Union's submission that the Employer was obligated to commence the interview process with the most senior applicant. While it could have done so, such an approach is not mandated by the collective agreement. As mentioned, the agreement requires that the process used must permit for a reasonable and fair assessment of the applicants' qualifications to perform the work of the job. I also reject the Union's submissions that it was improper for the Employer to have scheduled all of the interviews on the same date and that the answers should have been assessed on a pass-fail basis. On my analysis, the fact that the interviews were all conducted on the same day, and that answers were given a numerical score out of ten (10), did not transform the interview component into the type of comparative process typically engaged in under a competitive job posting provision. Mr. Stanley was not called as a witness to explain his assessment of the answers provided by the grievor at the interview. He gave the grievor a score of thirty-two (32) out of ninety (90). This represented the lowest score given to the grievor by the panel members. While it might have been helpful to hear directly from Mr. Stanley, in this instance I do not think anything turns on his failure to testify. I infer, from the score that he gave to the grievor, that he would likely have shared Mr. Franssen's assessment as to the grievor's qualifications. I also note Ms. Thorpe's evidence that, after the grievor's interview, all three (3) panellists agreed he had "failed the interview. " As previously stated, I fmd that the questions asked in both the Product Identification and Packaging Standards Test and the Product Knowledge Test were reasonably related to the duties and responsibilities of the posted position. As noted, neither the Union nor the grievor challenged the appropriateness of the questions. I disagree with the Union's assertion that the Employer should have disregarded the scores after it became apparent that the grievor and Mr. Goulden failed both tests. I note, in this regard, that the removal of their scores from the process would not have been material, in view of the fact that the difference in such scores was minimal. I am , 26 , satisfied the Employer could properly elect to continue with the selection process notwithstanding that both applicants failed the tests. Put another way, I do not think that the Employer was obligated to disqualify them from further consideration given their test results. Indeed, for obvious reasons, the Union did not suggest that disqualification should have occurred. In all of the circumstances, I see nothing objectionable in the Employer's decision to include the test scores in the overall evaluation of the applicants. In this sense, the test was not "a non-factor," as claimed by the Union. Mr. Moody, in his evidence, explained the reasons underlying his assessment of the grievor and Mr. Goulden. I accept that on a cursory review of his evidence, it might be arguable that Mr. Moody may have compared the two (2) applicants in the process of providing the reference checks to Ms. Thorpe. Without doubt, he thought Mr. Goulden was "the better candidate." I am satisfied, however, from a thorough review of the entirety of Mr. Moody's testimony, that he did not believe the grievor was qualified to perform the work of the position. Mr. Moody referenced deficiencies on the part of the grievor in the following areas: computer skills; ability to work independently with minimal supervision; and leadership skills. He further doubted that the grievor was qualified to perform "more specific aspects of the job," such as assisting with the preparation of an annual budget, planning and prioritizing work activities, and liaising effectively with Quality Control Logistics and Head Office. Mr. Moody also questioned whether the grievor possessed the requisite knowledge of the internal operations, processes, and controls of the Logistical Retail Support Centre. It seemed to be his assessment that the grievor could only do the more general tasks related to warehouse functions. Mr. Moody did not have these same reservations concerning Mr. Goulden. From his perspective, while Mr. Goulden might not have been able "to jump in and perform all aspects of the job," he was, unlike the grievor, able to perform a significant number of the core duties of the position. I note that Mr. Moody testified that, in arriving at his overall rating of Mr. Goulden, he did not cumpare him to ~ 27 -- - - the grievor. In his words, he instead cumpared the grievor to "the qualifications of the job." It is clear that Mr. Moody's involvement in the selection process was limited to the provision of the references. He did not participate in the panel's discussion of the applicants. I am satisfied that the information he did provide was consistent with the panel's ultimate conclusion that the grievor was not qualified to perform the work and that Mr. Goulden was qualified. I reject the Union's argument that the grievor and Mr. Goulden should each have been given a mark often (10) out often (10), as both "passed" the reference check component of the process. Neither of the applicants were entitled to this mark, as they were not rated as "Excellent" by Mr. Moody. I further note that if the grievor, like Mr. Goulden, had received a rating of "Very Good," he would still have achieved an overall total score of less than fifty percent (50%). I am unable to find that the Employer's decision to give equal weighting to the three (3) components of the selection process violated the requirements of the collective agreement. There is absolutely no evidence before me to suggest that the Matrix format was adopted "after the fact" by the Employer, with the intent to benefit Mr. Goulden and to undermine the grievor's seniority rights. Rather, I think it was properly used by the Employer to weight and quantify the overall assessments of the applicants. Ultimately, I agree with the Employer that the selection process was comprehensive and sufficient to enable the panel to make a fair, reasonable, and informed decision as to whether the grievor was qualified to perform the work of the posted position. In this instance, the Employer premised its decision on information gained from several sources. It did not restrict its assessment to what was said in the interview. The fact that the interview scores may have been determinative in the final analysis does not support either an award of the job to the grievor or a re-run of the process. It was acknowledged by counsel for the Employer that the personnel files of the applicants were not accessed in this instance. I am inclined to accept that there was likely little to 28 l review therein given the relatively short service of both the grievor and Mr. Goulden. I also accept that this omission, to a large extent, was offset by the reference check provided by Mr. Moody. Mr. Moody, as noted, had worked with both employees and was their Supervisor. The Union, here, did not argue that the failure to resort to personnel files flawed the instant process. In my judgment, however, the Employer would be well advised in future to review this source of information. In other circumstances, failure to do so could lead to a successful challenge against both the selection process and the result of the job posting. In summary, I conclude that the selection process used in this instance was not flawed, as claimed by the Union. I find that the information generated by the process was sufficient for the Employer to properly determine that the grievor was not qualified to perform the work of a Quality Control Logistics Representative and that Mr. Goulden was qualified for the position. F or all of the above reasons, the grievance is denied. Dated at Toronto, Ontario this 3rd day of October, 2005. tJJ~.... . . .. . . .. . . .. .. ., -.. r____ ,_ . . ,', '.,;,' ""-'; ,.. '., '.;.' .-' - " '-" :':- '.; ftt\......... .............. ....................~............. . ... ........ '...... .................................................. ., " ,"' . " .. "- ,: -,'"" ' ":;,....,,.. "," . __" __.1:. _ :_;, _ .~__'~,. ,,_, ,____ ._. . M.V. Watters Vice-Chair