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HomeMy WebLinkAbout1985-0735.Alam.87-08-31 "" --...." I :~;:~}:j _" ..... ~~ I ~ "j ,'-; -t{f:;J ~~~o;:;.~ , :~:~~': :~ ::- ,; 11111 ONTARIO CROWN EMPLOYEES RECErVED SEP 03 1987 GRIEVANCE SETTLEMENT BOARD CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD 6/598- 0688 180 DUNDAS STREET WEST. TORONTO. ONTARIO. MSG lZS-SUITE 2100 BETWEEN: BEFORE: FOR THE GRIEVOR: 0735/85 IN THE MATTER OF !IN ARBITRATION UNDER THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BEFORE THE GRIEVANCE SETTLEMENT BOARD OPSEU (Mubarka Alam) Grievor - and - THE CROWN IN RIGHT OF ONTARIO (Ministry of Gommunity and Social Services) Employer G. Brandt R. Russell G. Peckham Vice-Chairman Member Member 1. Roland Counsel Cowling and Henderson Barristers and Solic~tors FOR THE EMPLOYER: C. Slater Counsel Legal Services Branch Ministry of Community and Social Services HEARINGS: August 7J 1986 December 8, 1986 Decemb~r 15, 1986 March 16, 1987 May 19, 1987 \ I" I I ""i~',~, -------1 I ':';;' 2 AWARD This is a grievance of Mrs. Mubarka Alam alleging that the Employer. the Ministry of Community and Social Services. has violated Article 4.3 of the collective agreement in that it failed to award her the position of Intake Control and Statistics Officer fOllowing a competition for the job. Instead the job was awarded to Ms. Gloria Sokoloski who had less seniority than the grievor but who the Employer regarded as more qualified. In her grievance the grievor requests that she be awarded the job and that she be awarded fuB back pay with interest and benefits and"compensation for personal and emotional suffering", Ms. Sokoloski was notified of the proceedings but did not attend at the hearings except as a witness called by the Emptoyer. <.,-T'he Union claims that the compe~ition by which Ms. Sokoloski was chosen was flawed. In order to appreciate the nature of this alleged flaw it is necessary to set out certain facts concerning the origin of the position and how and when it Came to be filled. Generally the job involves the provision of clerical and supervisory support for the preparation of statistical, annual and monthly reports and ~ .. . other computerized and manual data for the Social Assistance Review Board. At the time of the competition the Executive Secretary to th~ Social Assistance Review Board was Mr. Tom Barratt As Executive Secretary he was responsible for staffing requests and the hiring of personnel into positions. Two managers report to the Executive Secretary. They w~re Mrs. Hounslow, the Office Manager, and Mrs. Fran Harper. Mrs. Hounslow has supervisory responsibilities over the Intake Control and Statistical Officer. r ...,. Prior to his arrival at the Social Assistance Review Board in October of 1983 Mr. Barratt had been Co-ordinator of the Operational Support Branch of the Ministry in which capacity he had some indirect supervisory responsibilities over people working at the Training Schools Advisory Board. More specifically he had had some involvement in the hiring under contract of Ms. Sokoloski as an Assistant Secretary to the Training Schools AdvisOfY Board. In October of 1983 he was seconded to the Social Assistance Review Board as a "trouble shooter". There had been some problems with delays between the time that an appeal had been lodged with the Board and the disposition of it and he w~s brought in to make some changes. He reviewed the various positions at the Board and the staff performing the various functions. One of those positions was that of Statistics QerIe. Another was" that of Intake Control and Statistical Officer. The Statistics Gerk reported to the Intake Control and Statistical Officer. At the time of Mr. Barratt's arrival at the Social Assistance Review Board it was an unclassified position and was fiUed on a part time basis by Mr. A. Merritt. It was decided that this shOUld become a full time position and it was classified in October of 1984. Similarly, some duties were added to the position of Intake Control and Statistical Officer and a revised job specification was prepared in June of 1984. Mr. Merritt left the pOSition of Statistics Clerk and a competition was held. Mr. Barratt was a member of the selection commitee which chose Ms. Sokoloski for the job in October of 1984. The grievor was not a candida~e in that competition. The incumbent in the Intake Control and Statistical Officer pOSition at this time was Mr. Andy Raigla who was under the supervision of Mrs. 3 , J. . I' 'Hounslow. Mrs. Hounslow also indirectly supervised Ms. Sokoloski who worked under the direct supervision of Mr. Raigla from October 1984 until he retired on May 1. 198~ at his normal retirement age. This case concerns the process by which the vacancy created by Mr. Raigla's retirement was filled. Mr, Barratt did not make a request for a staff requisition' for the position until March 1 S. 1985. Apparently there was some question as to whether or not Mr, Raigla would work beyond his normal retirement age of 65 and it was not known until March that be would definitely be retiring on May 1st. This request was authourized on March 18. 1985 and the request was sent to the Civil Service Commission which canvassed its list of surplus employees to see if there were any there who might be appropriate for the position and who should be interviewed. It was not until May 6. 1985 that clearance was given to post the position and conduct a competition. The job was posted and applications were sent to the Personnel Branch which reviewed them and determined that. of the 1 S applicatio~s. 3 did not. meet the formal qualifications. The files were then sent back to Mr. Barratt and a competition was conducted on June 20, 1985 at which time aU 12 of the qualified applicants were interviewe,d. each for one half an hour. The selection committee consisted of Mr. Barratt and Mrs. Hounslow. In the meantime Mr. Raigla had left on May 1 st and Ms. Sokoloski. who it may be recalled was at this time a Statistics' Oerk working under Mr. Raigla's supervision before he left. was assigned to perform most of his functions and worked under the close supervision of Mrs. Hounslow. . .: In preparation for the competition Mr. Barratt examined the job specification and prepared a list of selection criteria for the job. They were as follows: 4 I' 1. Progressively responsible clerical experience, preferably in a computerized statistical environment. . . 2. Ability to analyze and prepare statistical reports. 3. A good knowledge of (or ability to quickly learn) the operation o( the Social Assistance Review Board. 4. A good knowledge of the Family Benefits Act. General WeIface Assistance Act and other related social legislation. 5. Good interpersonal skills and the ability to deal with Appellants, lawyers, M.P.P. s etc. 6. The ability to understand. coordinate, and supervise a system of data input, verification. correction and analysis in order to ensure that the statistical and data requirements of the Board are maintained. 7. Good written skills to enable the preparation of memoranda, reports, correspondence, etc. Mr. Barratt then took both the selection criteria and the job specification and prepared a list of questions which were to be asked of each ..'. candidate at the interview. They were as follows: 1. From what I have told you about the Board, could you please tell me '*--~________ _._~....._ __.....t __~ _~~~~__ ____~..... _...________.L_ _~~f!"'_~~_ .&L_ ....JI__...~__ now your SKl1lS ano expenenc.;e WUUIU allOW yuu LU penurm LOt: UUI.1t:l:i required. 2. Could you tell me under what piece of legislation the Social Assistance'"Review Board is constituted? 3. Can you leU me under what piece of legislation: (A) Municipalities deliver social assistance . . (B) The Province delivers social assistance 5 i I I I ! \ 1 . j I .j i 1 ,- 6 What types of persons are eligible under each of the above pieces of legislation? 4. If an appellant walked in off the street claiming he was destitute, what would you do? S. How would you go about determining if the Social Assisfance Review Board had jurisdiction to hear the case? .6. We have submitted to the Chairman of the Board a recommendation to purchase ~2 IBM A K's with remote access to 1 hard disc. The purpose is to implement a system of indexing and tracking current cases as well as prOViding a wide range of statistical reports to the Board. If the system were purchased. how would you go about implementation? 7 a) Could you please describe the M.B.R. process and indicate what items would be important to include for a Board such as ours. b} What are the legislated turn around times the Board faces. 8. One of the responsibilities of this position is to prepare the Board's annual report. Could you describe how you would go about this task? 9. Could y~u please describe an optimum performance ap~raisal process. 1 O. Wl!~t would you do with an employee whose job skills appeared to be. deteriorating? 11. One of the requirements of this position is to determine the correct Ministry area office from which to request a submission on the case. Can YQu tell me the locations of the Ministry Area offices? 12. Do you have any questions for us? Next Mr. Barratt prepared a scoring sheet according to which he identified 4 general areas to which he assigned certain marks. These were .~J 1. Knowledge (Board, legislation. etc.) 2. Technical Ability (Computer Ktiowlege) 3. Com munication and Interpersonal Skills 4. Supervisory Skills 3S marks 25 marks 2S marks 15 marks. The selection panel was composed of Mr. Barratt and Mrs. Hounslow who was put on the panel because the position reported directly to her. All of the candidates were interviewed on June 20th at approximately one half hour intervals. Ms. Sokoloski was interviewed second; the grievor was interviewed last The process of the interview and scoring was as Iollows: Mr. Barratt began by descibing generally how the Social Assistance Review Board operated and the types of things that it did. He then proceeded to ask each candidate the questions ~ 1he order set out. Both he and Mrs. Hounslow took notes while the candidates were responding. Mrs. Hounslow asked no questions. No specific marks were assigned to the specif~c questions. Nor was there any specific assignment of questions to any of the 4 general areas although some questions related more directly to some areas than to others. At the conclusion of each interview.Mr. Barratt and Mrs. Hounslow, without consulting each other, reviewed their written notes and entered a mark for each of the 4: identified areas. Neither Mr. Barret nor Mrs. Hounslow consulted the resu mes provided by candidates before entering the mark. Indeed they did not have the_ resumes with them in the examination room. Mr. Barrett stated that he had read all of the resumes prior to the competition. Mrs. Hounslow stated that she had not seen the resumes. .. . , ... . . Before the next candidate entered the room they totalled their individual grades to reach a grade which represented the candidate's score 7 I~.-- 8 . on the examination. In 3 instances (none of which involved either the grievor or Ms. Sokoloski) an original score entered by Mr. Barratt for a particular area was changed after the total had become known. That occurred once on Mrs. Hounslow's score sheet. Throughout the process Mr. Barratt and Mrs. Hounslow did not consult with one another. After all the interviews had been completed Mr. Barratt and Mrs. Hounslow ranked the first 3 candidates, Their results were identical although the grades awarded to each of the three varied slightly. Mr. Barratt gave an 87 to Ms. Sokoloski, a 77 to Laurie Sanderson and a 76 to the grievor. Mrs. Rounslow gave an 85 to Ms. Sokoloski. a 72 to Ms. Sanderson and a 69 to the grievor. When these grades were averaged they produced an 85 for Ms. Sokoloski. a 74.5 for Ms. Sanderson, and a 72.5 for the grievor. Mr. Barratt and Mrs. Hounslow compared their rankings and decided: . that Ms. Sokoloski's score was significantly high~r than that of any of the others and that she should be offered the position. On cross-examination Mr. Barrett was pressed as to what he would have done if the grades had been closer. He stated that if Ms. Sokoloski had achieved a grade of 76 or 74 or 73 he. would have re-interviewed in order to make sure that he was getting the right candidate. However, since the scores here were significantly different he was confident that Ms. Sokoloski was the better candidate. When asked as to whether or not, if the SC()f~~ had been closer, he did not think that the grievor should be regarded as "relatively equal" and therefore awarded the jot> on the basis of seniority, he replied that he did not regard seniority as a significant factor when he makes the final selection in a job competition. In reaching their decision the panel did not consult the personnel files, the performance appraisals nor the supervisors of any of the candidates. Mr. Barrett stated that it was his experience from participating in a number of 9 I' "the employer must employ a process of decision-making designed to consider the relative qualifications and abiJity of the candidate in a competition which will ensure that sufficient relevant information is adduced before the decision-makers in order that they may make their com.parisons in the confidence that they are able to thoroughly and properly compare the qualifications and abilities of the competing applicants:' Later in the same case the Board stated that: "the process must be designed to elicit in a systematic manner sufficiently comprehensive information about each applicant relevant to the qua1ifi~tions and ability required to perform the job in order that a fair and reasonable assessment of the relative strengths of the candidates can be undertaken and the f~a1 selection' made." The Board went on to identify two respects in which the procedure used in that case rendered the competition defective. They were the failure of the employer to read the personnel files of the candidates and the failure .- to ask the supervisors of the candidates to prOVide written evaluations of the candidate's work performance, This kind of defect in a competition has been dealt with by the Board in other cases (Hoffman. 22/-70; Leslie 126/79; and 10 . McNamara 272/81) and the Board has in all of those cases found the competition to be flawed. There can, therefore, be no serious question that, having regard to the jurisprudence of the Board, the competition conducted in this case is flawed. - The selection panel did not consult personnel files, performance appraisals or the supervisors of the candidates. Indeed in the circumstances of this case there is even greater reason for finding this competition to have failed to measure up to the required standards. Although the selection panel did not consult the supervisors of the unsuccessful candidates one of the members of the panel. Mrs. Hounslow, was the successful candidate's immediate . . .~.... supervisor. Mr. Barrett was her indirect supervisor. Therefore, by virtue of that fact the panel itself had the benefit of certain information about Ms. Sokoloski's abilities which it did not have with respect to any of the other candidates including the grievor. That fact .alone is sufficient to justify our . ' ""-~.:~.. conclusion that the competition was fundamentally flawed. In this regard the case bears some resemblance to Leslie (supra). In addition to those already mentioned there are certain other elements in this competition ~hich render.it de,ftecti've. It Cannot be doubted . that Ms. Sokoloski enjoyed an advantage in the competition by reason of the fact that she had been performing most of the duties of the job for a period of apprOXimately 6 weeks between the retirement of the previous incumbent. Mr. Raigla, on May I and the competition on June 20th. This is not to say that any time a competition is conducted in which one of the candidates is performing the duties on a temporary basis it must inevitably and necessarily be flawed. However, care must be taken in designing the .examination so as not to give the incumbent an advantage that can be said to be unfair. We think tbat in tbis case there were elements in the examination .. which did not meet that standard of fairness. Question 8 asked the candidates to describe how to prepare an annual report of the Board. At the time of the competition Ms. Sokoloski was engaged in precisely that task and would: in our opinion. have had a substantial advantage over any of the other candidates in demonstrating her particular ability and qualifications. Another respect in which this competition failed to meet the requirements established by the Board is with regard to the action of Mr. Barrett and Mrs. Hounslow in virtually ignoring the tesu meso One would expect that these would contain valuable and pertinent information relative to the Question of qualifications and ability, information which ought to have been assessed in the conduct of the competition. The most difficult issue in this case is that of remedy. The grievor asks that she be awarded the job retroactive to the date that Ms. Sokoloski was hired and that she be paid compensation (with interest) in respect of the difference between her salary and that payable to the position in question , - from that date on. There is no question that the Board has jurisdiction to award that kind of relief. In R. v Ontario Public Service E'moloyees Union et at, 35 O.R. (2d) 670. the Divisional Court. on an application to review an award of the Board . -_. in Zubrycki (100/76) upheld a decision of the Board in which the position in question was award~d to a grievor who had been unsuccessful in a competition. However. it is equally clear that there are a number of cases in which the Board. in cases where it has found a competition to be flawed. has directed that the competition be conducted again with or without conditions attached. In some cases the Board has ordered that all the candidates in the original competition be entitled to participate again if they wish. (Siddiqi 11 ,..<c 12 128/51; Fauolari. Kumal and Budwell. 1244/84. 1353/84. 1354/84; . McNamara (supra); and Hoffman (supra). In others the Board has confined the competition to the grievor(s) and the successful candidate(s). (Chen and Talon 70/79: Leslie (supra). In some cases the Board. rather than direct a new competition. has remitted the matter to the parties and remained seised of jurisdiction. (Quinn(supra); .coot 39/84. Where the Board has ordered that the competition be fe-run it has frequently directed that certain 'conditions attach to the manner by which the competition should be conducted. Two common conditions are that the selection panel must not be composed of the same persons who conducted the original competition and that the elperlence of the successful incumbent sUbsequent to his or her entering the position should not be taken into account in making the selection. (Fa110lariet al (supra); Siddiaj (supra). In one case the Board issued specific directions as to the kind of information that should be placed in the hands of the applicants prior to the competition, the nature of the questions to be asked in the examination, and the nature of the other information about the applicants (eg. personel files and performance appraisals) that must be considered by the panel. (Fazzolari et al (supra). The Board has frequently expressed a reluctance to exercise its jurisdiction to award the job to a grievor directly rather than remit the matter to the parties for a second competition. Genetally, the reason given is that the flawed selection procedure is such as to prevent the Board from having before it sufficient information to permit it to make a judgment as between the candidates. (Fazzolari: Leslie: McNamara: Hoffman: Chen and. Talon: Quino) 13 . However there have been a nu mber of cases where the Board has ordered the job awarded to the grievor. Two which deserve special consideration are Zubrycld (supra) and Parent (.555/82556/82). Parent was a sequel to McNamara(supra). In Mcnamara the Board had ordered a new competition to be conducted between the original candidates, one of whom had been Denise Parent. That competition was conducted and the employer concluded that none of the candidates were qualified for the job. Although the grievor scored highest in the competition the committee did not promote her into the position because she failed to meet an absolute standard of ability to perform the job. The Board held that it was competent to substitute its judgment for that of the selection committee. First, insofar as the second competition was conducted in accordance with the principles as set down in the original award in McNamata. it was adequate to determine the relative abilities of the candidates. (In this respect Parent differs from the other cases in which . the Board was not satisfied that the procedure had been such as to elicit the necessary information to permit a judgment to be madeJ Secondly, there was evidence before the Board which persuaded it that the grievor had the qualifications and ability to do the job within the meaning of Article 4.3 of the agreement. Thirdly, the Board stated that. given the fact that a great deal of time hadpa~sed since the original competition. it would not serve the interests of either party to remit the matter back to the employer for further proceedings. Other cases between these parties in which the job has been awarded to the grievor without a second competition are Newburn and Phillips 485/81, 486/81, Bullen 113/82. Lethbrid2e 603/80. and Carrin2ton 462/80. ..~, 14 . The question before us is whether we ought to follow those cases in , - which the Board has ordered a rerun of the competition subject to certain stated conditions or whetber we ought to. enter upon that task ourselves and assess the relative merits of the grievor and Ms. Sokoloski. It was the position of the Union that, while the competition itself may not have produced information sufficient for us to make that determination, that information was made avail;tble to the Board by way of viva voce evidence and that the Board was therefore competent so to act. We are not persuaded that this is an appropriate case for intervening and substituting our judgment for that of the Employer by awardjng the grievor tbejob without a further competition. The cases in which the Board has awarded the job involve unique considerations which, in our opinion. do not obtain here. We deal first with Zubrycki and Parent. In Zubrycki the ultimate resolution of tne dispute took over -1 years and required a number of different proceedings before different tribunals. The grievance was fited in October 1976 and the Employer raised an objection as to whether or not the grievor was an "employee' for the purposes of the Crown Et:nPloyees Collective Bargaining Act. That matter went to the PUblic Services Labour Relations Tribunal in November of 1976 which. in April 1977 noted the agr~ement of the parties that the grievor was an employee for the purposes of the Act. The matter then came to this Board in July 1978 where the Employer again took the position tbat tbe Board lacked jurisdiction on the ground that the grievor was not an "employee". In September the Board rejected that sub missiOn and ordered a hearing into the merits. The bearing on the merits was held in July 1979 before a differently constituted panel of this Board 15 chaired by Mr. Adams. In May 1979 the Board allowed the grievance on its merits. finding that the grievor had made out a "prima facie case that he was at least equal in ability and qualifications to all of the other candidates". However. that Board did not award the grievor the job. Instead it remitted the matter to the parties to fashion an appropriate remedy while at the same time retaining jurisdiction in the event that agreement could not be reached. Agreement was not reached and in December. 1980 the matter came bade to the Board. this time before a panel chaired by Mr. Prichard. (Mr. Adams haVing since resigned from the Board). That Board awarded the job to the grievor. However. in doing ~o it recognized that it was exercising a po~er that should be employed only rarely in special circumstances. One passage from the award of the Board is insiructive: "...arbitration boards must be sensitive to the limits of their institutional competence and to tbe advantages of relying on internal processor for making promotional decisions. However. there wiH be cases in which sensible labour relations will require an externally imposed, final solution and. in our opinion, the before is such a case. " On judicial review the Divisional Court agreed with that reasoning. Uk v Ontario Public Service EmDloyees Union 35 O.R. (2d) 670 at p. 676) Two of the considerations which were material in awarding the job to the grievor in that case were that there had already been a favourable determination on the merits and that, having regard to the prior conduct of the employer, ~ :r. there was some reason to doubt that a fair competition could be conducted were one to be ordered. Parent is also a case with unique facts and circumstances. As indicated that was a case which came before the Board following a second -, competition which the Board found to have been properly run and which 16 'had therefore produced results which permitted the Board to make its'own judgment. Moreover, in that competition the grievor had scored highest and was only denied the job because of het failure to meet an absolute standard required by the Employer, one which the Board found, in view of the fact that the job was a relatively low level Oerk 3 job, to be unacceptable. In the circumstances there would-have been little point in ordering a third competition. Therefore, in each of these cases, the issue as to the appropriate remedy arose.within a context wherein there had already been a determination that, vis a vis other candidates for the job the grievor was at least relatively equal in qualifications and ability. In Zubrycki tbat determination had been made by the Board. In Patent it had been made through the results of the second competition. In the instant matter no such prior determination has been made. The grievor stood a somewhat distant third in what was admittedly a flawed competition. Moreover;\1le are not satisfied on the evidence that the facts of this case disclose the element of bad faith that might be said to have been present in Zubrycki. Counsel for the Union sought to persuade us that. having regard to the prior association between Mr. BarraU and Mrs. Hounslow and Ms. Sokoloski. they appro~ched the interview with a partiCUlar "cast of mind" which predisposed them in favour of Ms. Sokoloski. We do not doubt that Ms. Sokoloski had an advantage over the grievor in so far as she was known to the members of the selection panel and had been performing some of the duties of the job prior to the c;ompetition. Tha1. however, is not sufficient to brand the process as characterized by bad faith. ....-- Were that the case a large number of competitions would be open to challenge on this basis. 17 Similarly, while it might have been better to begin the process of replacing Mr. Raigla earlier, in order that Ms. Sokoloski not enjoy the advantage which she did by being assigned many of his duties prior to the eo~petition the evidence indicates that Mr. Barratt acted as soon as he. became aware that Mr. Raigla intended to take his retirement and the delays in having the matter processed from there were no fault of Mr. Barratt. The other Cases where t!le Board has directed that the job be awarded to the grievor, and on which the Union relies, do not persuade us to take a different view of the matter. In Newburn and Phillips the selection procedure was found to be flawed but the Employer elected to call no evidence at all at the hearing. The Board found, not surprisingly, that the Union had established a prima facie case that the grievors were "relatively equal" to the successful incum~ents. and, in the absence of any evidence to the contrary, awarded the jobs to the grievors. In the instant case the Employer led substantial evid~nce with respect to the issue of "relative equality". ., In Lethbridge there was an initial interview of II candidates as a result of which the selection panel rated the grievor and the successful incumbent "approximately equal" (as the Board found). There was then a second interview of just the grievor and the sucCessful incumbent. That . interview was found by the Board to be flawed. The Board concluded that since. on the initial interview. the two candidates were found by the selection panel to be "relatively equal", the job should be awarded 'to the grievor. In the instant case the selection panel did not find the grievor and Ms. Sokoloski to be "relatively equal" in the competition. There was a significant difference between their raw scores and t.he grievor ranked third behind another candidate. We cannot conclude' as the Board .did in' 18 'Lethbridge that. on the basis of the results of the selectlon procedure itself the grievor demonstrated her "relative equality". In Bullen the Board had evidence from the two supervisors of the grievor and the successful incumbent (who like here had not been consulted by the selection panen. One supervisor stated that the two were relatively equal. The other stated that the grievor was "better suited" to the position in question. In addition the Board found that. while the selection procedure was flawed. the results of that procedure indicated that the grievor and the successful incumbent were "close enough to be rated as relatively equal". Thus there was clear evidence before the Board to persuade it that. as between the two candidates. the grievor had established "relative equality". The evidence before us does not point as clearly to that conclusion. . Finally we refer to Carrington. Unfortunately that award is to be brief in its recitation of the facts and reasoning of the Board to permit usto draw any conclusions therefrom. It is our conclusion therefore that the matter should be remitted to the parties and a second competition conducted. However. we think it important that there be a number of conditions attached to the conduct of a second competition. First, the competition should be limited to one between the grievor and Ms. Sokoloski. Second, the panel should not consist of either Mr. Barratt or Mrs. Hounslow. Third. the panel is instructed to consult with the supervisors of both the grievor and Ms. Sokoloski. Fo'urth, the panel is instructed to review the personnel files. performance appraisals, and the resumes of the candidates prior to the holding of the competition. Fifth. the panel is to discount any of the experience that Ms. Sokoloski has enjoyed during the periOd since her appointment to the position as the successful ;: 19 , candidate in the competition. The experience she had in the job, prior to the competition is, however, relevant to the issue as to whether or not she should be selected for it. Each of these five conditions have been attached by the Board in various of its previous decisions. We propose, however, to add two more conditions, which to our knowledge have not yet been required. We are con~erned that Ms. Sokoloski not enjoy an unfair advantage due to the fact that she has been in the jOb for approximately 2 years as a result of a process which we have found to be riawed. To some extent that advantage can be minimized by the conditi9B-which we have referred to above which requires that the panel discount her experience on the job since her having been awarded the job follOWing the competition. However, in our view, it is inevitable that Ms. Sokoloski will enjoy an advantage in any interview wherein the questions asked focus on specific tasks that are required to be performed in the job. We therefore direct that, in designing _ the competition, the Employer have regard to this injunction and refrain from asking questions of that kind. Secondly, we think it important to emphasize that the issue before the Board concerns the entitlement of the grievor to the job as it was at the time. that it became vacant. There was some evidence to indicate that the job had changed significantly since Ms. SOkoloski entered it. That fact cannot prejUdice the grievor's rights under the colle~ive agreement. If the grievor'". is qualified for the job as it originaJ1y was there is no reason to believe that. she could not, as did Ms. Sokoloski, perform those duties that came to be added to since ttiat time. COnsequently we direct that, in conducting the' competition, the selection panel have regard to the duties of tbe job as they were at !be time of posting. Were it otherwise a successful incumbent would ~) 'always enjoy an unfair advantage in any second competition which would. of necessity. be conducted some time after the job had originally been filled. Consequently the grievance is allowed and the Employer is directed to conduct a second competition subject to the terms and conditions set out herein. We remain seised of jurisdiction in the event that difficulties arise concerning the implementation of the conditions herein set down. Dated at LONOON. Ontario this 3151: day of August .1987 /~v, G.]. Brandi. Vice Chairman Bj(~~ R.;>Ru5sell Member G. Peckham Member 20 ..