HomeMy WebLinkAbout1987-2472.Cooke.91-07-18 DecisionONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L'ONTARIO
GRIEVANCE COMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. MSG 1Z8
180, RUE DUNDAS QUEST, BUREAU 2100, TORONTO (ONTARIO), MSG 1Z8
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2472/87
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OLBEU (Cooke)
Grievor
- and -
The Crown in Right of Ontario
(Liquor Control Board of Ontario)
Employer
BEFORE: J. McCamus Vice-Chairperson
J. Solberg Member
H. Roberts Member
FOR THE E. Mitchell
GRIEVOH Counsel
Koskie & Minsky
Barristers & Solicitors
FOR THE B. Labord
EMPLOYER Counsel
Hicks, Morley, Hamilton, Stewart, Stone
Barristers & Solicitors
HEARING August 22, 1988
3
On this branch of the Grievance, the relative seniority of the
Grievor and the three incumbents is obviously rendered material by
Article 32.4. The parties are in agreement that seniority for
these purposes is calculated for part-time employees by the number
of hours worked. The seniority figures for the three incumbents,
on this basis, are as follows:
1. W. Wood 4026.5 hours
2. L. Robinson 2998.5 hours
3. E. Kernot 972.5 hours
The Grievor's seniority, calculated on this basis, is 2723.5 hours.
Thus, the Grievor plainly has substantially more seniority than Mr.
'Kernot but less seniority than Ms. Robinson and Mr. Wood. The
parties further agree that the proper interpretation of the
standard set forth in Article 32.4 would only require the Employer
to appoint the Grievor if it held the opinion either that he was
clearly superior by a substantial and demonstrable margin to those
candidates - Ms. Robinson and Mr. Wood - who have greater seniority
or that he was "relatively equal" to the one employee - Mr. Kernot
- with respect to whom he has greater seniority.
Alternatively, it is argued that the competition itself was
so defective that the Employer failed to discharge its
responsibility under that Article to "give consideration to the
qualifications and ability" of the Grievor. With respect to the
latter point, the Grievor relies upon the substantial body of
jurisprudence of this Board which has emphasized, as it did in
Ouinn and Ministry of Transportation and Communications GSS 9/78
5
(Exhibit 5). The respective scores of the three incumbents and the
Grievor were as follows:
1. L. Robinson 49
2. W. Wood 46
3. E. Kernot 49.3
4. J. Cooke 41.7
The three incumbents thus achieved higher scores on the interview
than the Grievor. All four of the scores, however, appear to be
above the average score awarded to the thirty candidates. The
Union put in its case through the testimony of the Grievor and of
his immediate supervisor, Mr. Wayne Barry who was, at the material
time, the Manager of Store 612 in Schomberg, Ontario. Mr. Cooke
began working at Store 612 as a part-time employee in July of 1986
and was supervised by Mr. Barry up to and, indeed, beyond the time
of the competition. During this period Store 612 was classified
as a 'D' store. 'D' stores are, according to Mr. Barry,
essentially a "one man operation". At a later point in time, Store
612 was moved up to the 'C' category. A typical 'C' store has a
manager, an assistant manager, a book-keeper and perhaps three or
four full-time clerks. When Store 612 was upgraded, Mr. Barry
became the Assistant Manager.
Mr. Barry's evidence concerning the Grievor's performance as
a part-timer at Store 612 was very positive. Mr. Barry is an
employee of ten years standing who has broad experience in a
variety of different sizes of stores. As well, he has had good
experience in working with part-time employees in these contexts.
Against this background, Mr. Barry rated the Grievor's performance
7
Store 612. Thus, the Grievor was unable to study the manual,
should he have determined to do so, prior to the interview. When
asked on cross-examination whether the manual could have been
photocopied, Mr. Barry indicated that it was too large a document
for this to be a practical alternative.
In his testimony, the Grievor confirmed the evidence of Mr.
Barry with respect to the range of responsibilities he had assumed
in the course of his part-time employment in Store 612. With
respect to some items, the Grievor provided a more detailed account
of his experience than did Mr. Barry. As well, the Grievor
indicated that he had taken a product knowledge seminar offered by
the Employer and further, had done some reading on his own on wines
and spirits. Further, the Grievor offered evidence with respect
to his work experience prior to his part-time work for the
Employer. The Grievor had previously worked' in the trucking
industry as a claims adjuster, head dispatcher and as a manager for
something in the order of a total of ten years. As well, he spent
five years as a Supervisor Clerk IV with the Ontario Hospital
Insurance Plan. In the Grievor's view, this increased his
-suitability for appointment as he had a good deal of previous
experience in dealing with customers and clients. As •well, he
indicated that he had taken courses in bookkeeping and accounting,
human relations, personnel management, public speaking and
effective supervision.
9
interview. Upon the occasion of the interview, the Grievor was not
given any indication of his evaluation. Indeed, he testified that
he never did get formal notification of the reasons for his failure
to succeed in the competition. Mr. Barry asked Mr. Ford to see the
Grievor and this task was delegated by Ford to Mr. Carter.
According to the Grievor, Mr. Carter told him that he was not
successful because he did not attain high enough marks on the
interview. Mr. Carter allegedly said that he realized that the
Grievor had "more ability" but that this was because he had worked
in a smaller store and had more opportunity to do various aspects
of the job. The Grievor indicated that Mr. Carter further reported
that the selection was made on the basis of the interviews, the
evaluations and seniority. The Grievor further testified that one
of the members of the Committee, Mr. Alfie Palmerio was the
supervisor of the incumbent Kernot in Store 453.
Before turning to consider the legal arguments presented by
the parties, we may note that the evidence concerning the Grievor's
conversation with Mr. Carter raises more questions than it answers.
In what respect was the Grievor allegedly "more able" than any of
the other candidates. Did this ability relate to knowledge of
procedures and, if so, what was the relationship to that judgement
offered by Mr. Carter and the test that constituted the interview?
Were Mr. Carter's views shared by the rest of the Panel? Did the
Committee take the decision to discount ability and qualifications
arising from previous work experience with the Employer and rate
11
provision in a collective agreement that layoffs would be made on
the basis of seniority provided that the employees, "in the opinion
of the Company," were "relatively equal". The grievor alleged that
he had been improperly laid off in favour of a more junior
employee. At the hearing, the union put in evidence concerning the
grievor's qualifications, his seniority and established the fact
that more junior employees had been retained. No evidence was led
with respect to the qualifications of those more junior employees.
Notwithstanding the absence of comparative evidence of this kind,
the employer's motion for a non-suit was dismissed. The board of
arbitration reasoned as follows, at page 49:
In our view, once it has been shown (as in the instant
case) that an employee is entitled to the benefit of the
general dispositive provision of the article, it is then
up to the company to bring itself within the proviso, and
to show that, in its opinion the employee in question was
not "relatively equal" to those retained.
We are of this view not only by reason of our
construction of the article but also because we consider
it a realistic and proper requirement, in cases of this
sort, that the employer, which has taken action with
respect to an employee, which has the benefit of a wide
discretion with respect to such action, and which alone
has knowledge of the grounds on which its opinion was
based, be required - the grievor's general entitlement
being made out - to come forward and establish the
grounds for its opinion.
An application for judicial review of this Decision was dismissed
by the Ontario Divisional Court. See (1975), 10 L.A.C. (2d) 172.
-There are at least two decisions of the Grievance Settlement
Board in which a similar analysis has been applied in the context
of promotion grievances. The facts of those cases are strikingly
13
The Board remitted the matter to the parties ,.with an instruction
that they fashion an appropriate remedy.
Similarly, in Newburn & Phillips v. The Crown in Right of
Ontario (Ministry of Health) 485/81 and 486/81 (Verity), this Board
held that an evidentiary burden shifted to the employer and to the
incumbents to justify the employer's decision at the conclusion of
the Grievor's case. In Newburn & Phillips, again, no motion of
non-suit was made by the employer, but the employer elected to call
no evidence. Accordingly, it was thought necessary that the Board
'should determine whether the Union had established a prima facie
case. The Union had put in its case through the evidence of the
two grievors who testified with respect to their own qualifications
and with respect to their experience of the interview process. As
well, several documents were introduced including score sheets for
members of the selection committee, total composite scores of each
candidate and application forms for the successful incumbents and,
presumably, the grievors. As in Zuibrvcki, the two incumbents were
duly notified and present at the hearing. Neither incumbent
testified or made representations to the board.
In Newburn & Phillips, the Board determined that the Union
had successfully established a prima facie case to the effect that
the grievors were at least equal in ability and qualifications to
the two successful candidates. The Board noted as follows, at
pages 10-11:
15
establish a Drima facie case, the Union must lead evidence of the
qualifications and ability of the incumbents in order to
demonstrate that the grievor is either relatively equal or superior
to them. In order to offer convincing support for this
proposition, the Employer must demonstrate either that the previous
decisions of the Board in Zuibrycki and Newburn & Phillips are
inapplicable or that they are wrongly decided. Two arguments have
been put forward on behalf of the Employer to this end. First, it
is argued that the decisions in Zuibrycki and Newburn & Phillips
are inapplicable because they deal with situations in which the
employer has simply elected not to call evidence. Second, it is
argued that there exists a line of previous decisions of this Board
which are in conflict with these two decisions and that the
reasoning in this conflicting line of authority is preferable to
that in Zuibrycki and Newburn & Phillips.
With respect to the first point, we appreciate that this is
in fact a distinction between the procedural context within which
the issues arose in Zuibrycki and Newburn & Phillips as opposed to
that of the present case. Nonetheless, we are not persuaded that
this is a material distinction. The Employer argues that where
there is simply a failure to call evidence, the adjudicator is
entitled to draw a negative inference from that failure, whereas
in the context of a motion for a non-suit, such an inference would
be inappropriate. We appreciate that the rules of evidence do
indicate that a failure to lead evidence may indeed lead to such
- 17
decisions of the Grievance Settlement Board -which appear to be
inconsistent with that theory. This proposition and the cases upon
which the Employer relies must be examined with some care. As will
be seen, it is our view that these cases can be reconciled with
Zuibrycki and Newburn & Phillips, albeit with some difficulty.
Further, we are satisfied that, to the extent that any real
conflict exists, we prefer, in general terms, the analysis
concerning the nature of the Union's prima facie case and the
resulting shift in the evidentiary burden adopted in Zuibrycki and
Newburn & Phillips.
The decisions upon which the Employer relies are Fish v. The
Crown in Right of Ontario (Ministry of Labour) 139/77 (Swinton);
Genys V. The Crown in Right of Ontario (Ministry of the
Environment) 52/80 (Jolliffe); Tofano v. The Crown in Right of
Ontario (Ministry of Industry and Trade) 478/82 (Kruger) and Rg
The Crown in Right of Ontario (Ministry of Colleges and
Universities v. Ontario Public Service Employees' Union (1982), 7
L.A.C. (3d) 415 (Roberts).
In Fish, the only evidence led by the Union came from the
Grievor himself. The Grievor testified with respect to his own
qualifications and ability and with respect to certain alleged
defects in the competition. The Employer moved for a non-suit and
enjoyed success. The Board noted that there was no evidence led
with respect to the incumbent's qualifications and that, indeed,
19
successful candidate. The applications of the two individuals
constituted "a frail reed" on which to base a relative assessment.
There was no evidence led in Genys to suggest that there were any
deficiencies perceived by the grievor in the selection process
itself.
Similarly, in Tofano the principal evidence led was that of
the Grievor. Although the Union also called the incumbent as a
witness in this case, the only question put to him on behalf of
the Union concerned his seniority date. Essentially, then, the
Union's case was put in through the Grievor. His evidence with
respect to his own qualifications was held to be insufficient to
make a Drima facie case of relative equality to the incumbent and
accordingly the Employer's motion of non-suit enjoyed success. The
Grievor also alleged but did not persuade the Board that there was
a significant defect in the procedure used by the Employer in the
selection process.
The fourth in this line of the authorities relied on by the
Employer is the Ministry of Colleges and Universities case in which
the Grievor was denied an interview in the competition in question.
Again, the Union put in its case through the evidence of the
Grievor. Counsel for the Grievor had indicated that the thrust of
the -case "would be that the employer used an unfair or
inappropriate selection procedure and as a result, the competition
must be re-run". (See page 417). The Grievor's evidence, however,
21
conclusion that the Employer's motion for a nom-suit should succeed
with great reluctance and regret. Further, a vigorous and, in our
view, persuasive dissent was filed by the third member of the
panel. The majority began its award by stating that, "This is a
disturbing case". The majority went on to explain as follows at
page 416:
First, this ruling which we were make
pursuant to the employer's motion does little to promote
satisfactory labour-management relations. Any
consideration of what might have been legitimate
substantive issues has been thwarted.
Secondly, in a job-posting grievance such as the one
at hand, the motion for non-suit seems to be little more
than a snare to trap the unwary. Most of the facts
regarding the selection procedure used in a competition
are peculiarly within the knowledge of the employer and
not the grievor who has the burden. In recognition of
this, other "representatives of the employer have made
what might be called 'disclosure' by calling witnesses,
including those who made the selection, so that the board
could be informed as to how the competition was conducted
and the reasons for which the choice was made": RI
Genys....Given the existence of this practice, counsel
for the grievor undoubtedly was surprised by the
employer's motion.
We are so disturbed by this factor that if we were
convinced that counsel for the grievor had elicited all
of the evidence reasonably within his grasp regarding the
fairness of the selection procedure - and yet failed to
establish a prima facie case - we would have been tempted
to change the law of the board by shifting to the
employer both components of the burden of proof, i.e.,
burden of producing evidence and burden of persuasion,
on the issue of the fairness of the selection procedure
established by the employer for failing to post a
vacancy.
Plainly, the majority felt that it was bound by the previous
decisions in Fish and Genys to come to a conclusion which the
majority found quite unattractive on policy grounds. The dissent
was very critical of the reasoning of the majority on three
23
421). Finally, the dissent criticized the majority's
interpretation of the evidence and suggested that the evidence did
support the proposition advanced by the Union to the effect that
the Employer had not properly considered the Grievor's
qualifications and ability to perform her duties.
As we have earlier indicated, we find the approach taken by
the dissenting opinion in Colleges and Universities and the reasons
for the reluctance expressed by the majority in that case to be
quite persuasive. Accordingly, the question this Panel must
squarely address is whether we are, in effect, bound by the
previous decisions of the Panel in the cases such as Genys, Fish
and Tofano to come to the conclusion so reluctantly embraced by the
panel in the Colleges and Universities decision. In our view, the
line of cases relied upon by the Employer can be distinguished from
the previous decisions of the Board in Zuibrycki and Newburn &
Phillips, the latter being the cases which adopt the shifting
evidentiary burden theory. The first point of distinction relates
to the quality of the evidence led by the Union in the two
different lines of authority. In the Genys and Fish line of
authority, the only evidence led by the Union, typically, is the
Grievor's own evidence with respect to his own qualifications. It
is not surprising that previous panels of the Board have been
reluctant to come to the conclusion that the Grievor can, out of
his or her own mouth, as it were, provide compelling evidence that
his or her qualifications are relatively equal to those of the
25 -
presence of a defect in the competition is a further and important
factor in determining which of the two lines of authority are
applicable to a particular set of facts. Thus, in Newburn &
Phillips, the Board was persuaded that the competition was, in
fact, defective and accordingly, was prepared to uphold the
grievance. In Fish, on the other hand, where the Employer's motion
for a non-suit was upheld, the Board noted that if the existence
of defects in the competition process had been established, the
result might well have been otherwise.
Our own view is that the presence or absence of a defect in
the competition is, indeed, a material consideration in determining
whether the Union has made out a prima facie case. Although we
appreciate, of course, that "superiority or relative equality" and
"competition defect" are severable grounds for a grievance, we
nonetheless think that there can be a relationship between them in
the context of a determination as to whether or not the Union has
made a prima facie case of superiority or relative equality. In
the present case, for example, the evidence concerning the
Grievor's qualifications and ability are very strong. In
attempting to determine whether or not the Grievor has made out a
prima facie case of relative equality to the incumbent, it may
strengthen the Union's case if it is able to show that the
strengths of the Grievor's candidacy appear not to have been
properly considered by the Employer. We do not wish to suggest
that a competition defect must be shown in every case in order to
27
recalled that the Grievor's supervisor, Mr. Barry, was not a member
of the panel. In previous decisions of the Board, the presence of
the supervisor of one of the candidates on the selection panel has
been identified as being problematic. The potential seriousness
of this problem has been emphasized in some awards. In OPSEU
(Alam) v. The Crown in Right of Ontario (Ministry of Community and
Social Services) 735/85 (Brandt), the Board noted in similar
circumstances that the presence of one supervisor and the absence
of the Grievor's supervisor meant that the panel had the benefit
of certain information concerning one candidate which it did not
have in respect to other candidates. The Board went on the say,
at page 10, that "that fact alone is sufficient to justify our
conclusion that the competition was fundamentally flawed". See
also, OPSEU (Eaton) v. The Crown in Right of Ontario (Ministry of
Transportation and Communication) 629/85 (Connaught). We need not
consider whether the presence of one of the candidate's supervisors
on the selection panel is a defect which could be cured by adequate
consultation of the supervisors of all candidates for in the
present case, the evidence is that the Grievor's supervisor was not
consulted by the selection panel. Further, we need not consider
whether the presence of one of the candidate's supervisors on the
committee is invariably a fatal defect. We limit ourselves to the
observation that where one supervisor is present, efforts must be
made-to ensure that other candidates are not handicapped by this
fact.
29
related to the second is that the selection. committee did not
consider other relevant information necessary to the making of an
informed decision. Here again, the evidence led by the Union does
not go so far as to establish this proposition. As with the second
alleged defect, we are satisfied that the Union has raised evidence
of suspicious circumstances, but has not gone so far as to
demonstrate that the panel did not, on the balance of
probabilities, consult relevant sources of information. The one
clear failure on the part of the selection committee in this
regard, of course, is the failure to consult the Grievor's
supervisor. Though it is not necessary for us to reach any
conclusion as to the severity of such a defect as a general
proposition, we do note that the failure to consult supervisors is
a factor which renders substantially more serious the defect
arising from the fact that Mr. Palmerio, the supervisor of Mr.
Kernot, was a member of the selection committee.‘
In summary, then, we are persuaded that the Employer's motion
for a non-suit should be dismissed. In reaching this conclusion,
we have been obliged to choose between the two lines of authority
found in the previous decisions of this Board represented, on the
one hand, by the decisions in Zuibrycki and Newburn & Phillips and,
on the other, by decisions such as those in Fish and Genys. We
have_ come to rest on a preference for the applicability of the
former line of authority for a number of reasons. First, in
carefully looking at the factual distinctions that can be drawn
31
grievance must enjoy success, we must consider. the question of the
appropriate remedy. A number of factors are relevant to this
question and, again, extensive submissions were made by counsel for
both parties on this point. First, we note that, as in Zuibrycki,
we are not persuaded that the Union has established a prima facie
case that the Grievor is superior by a substantial and demonstrable
margin to those candidates - Ms. Robinson and Mr. Wood - who had
greater seniority than the Grievor at the time of the competition.
We are satisfied, however, that a prima facie case of relative
equality to the incumbent with lesser seniority, Mr. Kernot, has
been established. We note, further, that the principal defect
identified in the competition process, the presence of Mr. Palmerio
on the selection panel, is one which relates to a possible
advantage or apprehension of bias with respect to the candidacy of
Mr. Kernot. For these reasons, we believe that the remedy should
be focused on the competition between Mr. Kernot and the Grievor.
We are persuaded by the submissions of counsel that the
possible remedies available to the Grievor in a case of this kind
includes both a rerunning of the competition and, alternatively,
the awarding of the position to the Grievor by order of this Board.
Accordingly, we have given much consideration to the question of
which of these two remedies is the more appropriate in the present
circumstance. A number of factors have led us to the conclusion
that the appropriate remedy in the present case would be to order
a rerunning of the competition between the Grievor and Mr. Kernot.
33
A.The position need not be posted again. Only the Grievor and
Mr. Kernot should be considered as candidates.
B.A new selection committee must be constituted, consisting of
no members of the previous committee.
C.The new committee is free to develop whatever procedures and
questions it deems appropriate within the parameters of
Article 4.3 and this Board's jurisprudence.
D.As far as is possible, the selection committee should design
its process so as to avoid conferring an advantage on Mr.
Kernot as a result of the knowledge he may have acquired since
assuming the position which was the subject of the
competition.
The Board retains jurisdiction with respect to any points of
difficulty that may arise in the implementation of this Award.
Dated at Toronto this 18thday ofJuly , 1991.
"I Dissent" (dissent attached)
J. Solberg (member)
r 0 -A-.)AAA 4
H. Roberts (Member)
evidentiary onus? That the conclusions reached have no meaning
beyond merely determining the legal question of the non-suit?
It's true that awarding a contested position to a grievor only
happens in unusual circumstances. It happens when the Board has
the evidence necessary to reach a conclusion on the merits or
where, having regard to the conduct of the Employer, there is
reason to doubt that a fair competition could be conducted were
one to be ordered. I think that both criteria have been met in
this case and explicitly argued in the award itself.
Finally. This Employer knowingly took a "risk" by launching a
non-suit and not calling any evidence. The Employer expected
this Board to find that the Union had not made its prfacieL
case, that is, that the Union failed to prove that the grievor
was, at least, relatively equal to the more junior employee. The
risk, in such a situation, was that if the Board concluded that
the Union had made its prima facie case, it would then award the
position to the grievor consistent with the proper interpretation
of the collective agreement.
But, the remedy proposed effectively nullifies any real risk. If
the Employer had called all its evidence and lost, then the Board
might have ordered another competition. This Employer called no
evidence and lost, and the result is the same. That's no risk.
That's an open invitation for more of the same kind of unyielding
and unhelpful behaviour by an Employer which does no credit to
labour relations or to the arbitration process.
In the end, the Union did all that was required.. And up to the
point of remedy, the Board's decision confirms every aspect of
the Union's position in a systematic and thorough manner. But
the remedy itself, seems to me to have little basis in logic or
fairness. And with the passage of time, little relevance, as
well. With great respect, the Board's ultimate decision also
does no credit to the arbitration process.
2