HomeMy WebLinkAbout2006-0910.Neuman.09-01-16 Decision
Commission de
Crown Employees
Grievance Settlement
règlement des griefs
Board
des employés de la
Couronne
Suite 600 Bureau 600
180 Dundas St. West 180, rue Dundas Ouest
Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8
Tel. (416) 326-1388 Tél. : (416) 326-1388
Fax (416) 326-1396 Téléc. : (416) 326-1396
GSB#2006-0910
UNION#2006-0377-0009
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Neuman)
Union
- and -
The Crown in Right of Ontario
(Liquor Control Board of Ontario)
Employer
BEFOREVice-Chair
Reva Devins
FOR THE UNION
Val Patrick
Grievance Officer
Ontario Public Service Employees Union
FOR THE EMPLOYER
Alison Renton
Counsel
Liquor Control Board of Ontario
HEARING
January 29, April 10, April 16 and June 11,
2008.
2
Decision
[1]The grievor, Paul Neuman, applied for the position of Product Consultant; he was
deemed unqualified and a more junior applicant was the successful candidate. The parties
agree that the posting at issue was covered by s. 21.5(a) of the Collective Agreement,
which provides for a threshold evaluation, not a competition between candidates. The
parties further accept that if the grievor met the minimum qualifications for the position,
he should have been awarded the position.
Facts
[2]The grievor has been employed as a Customer Service Representative, (?CSR?), for
approximately ten years. He began as a casual employee and became a permanent
employee in 1989. He testified that during his tenure with the LCBO he has acted in the
capacity of store manager from time to time and as Product Consultant, (?PC?), on two
different occasions. His first acting assignment was eight or nine years ago at a high
volume store in Pickering; he believed that he was there for several months although he
was not paid at an acting Product Consultant rate. The grievor did not provide any
further details of this assignment.
[3]The grievor transferred to Store 771 in September 2005 and testified that he was the
acting PC at that store when he applied for the permanent position. The grievor stated
that while working as the senior CSR at his previous location, he was approached by his
District Manager, Paul Forsyth, to see if he was interested in taking care of the Vintages
area at Store 771. Subsequent to his move, he claimed that he was assigned the full range
of duties as a Product Consultant: he would interact with customers, stock and order
3
product, interact with representatives from different wineries, do inventory counts,
prepare product notes for customers and participated in at least one tasting session. The
grievor did not receive written confirmation that he was acting as a Product Consultant
and he continued to be paid as a CSR. He acknowledged that, after his transfer, he
regularly performed CSR duties such as cash and running shifts.
[4]Mr. Forsyth testified that the grievor had requested a transfer to Store 771 and that a
lateral transfer was confirmed by letter dated September 12, 2005. He recalled that the
grievor had indicated his interest in a promotion to the Product Consultant position.
Since there was currently no Product Consultant at Store 771, Mr. Forsyth viewed the
grievor?s transfer as an opportunity for him to learn about the PC position. The grievor
was assigned some of the Product Consultant duties along with his regular duties, as were
other CSR?s at that location. He was not, however, assigned to the position in an acting
capacity.
[5]The Product Consultant position at Store 771 was posted on September 22, 2005, with a
closing date of October 5, 2005. The grievor, along with a number of other candidates,
submitted an application. The selection process was long established and included
several components:
[6]Initial screening: review of performance appraisals, discipline and attendance records and
confirmation that the candidate had attained minimum product knowledge courses;
4
[7]Completion of Product Consult Questionnaire: outline of candidate?s experience, courses,
retail experience, product tasting courses, training and problem solving;
[8]Technical component, worth 30% of the final score: product knowledge assessment -
essay, multiple choice and palate sensitivity testing;
[9]Presentation and interview, worth 70% of the final score: each candidate delivered a ten-
minute presentation on an assigned topic to the three-member panel. Candidates were
asked to answer seven questions covering Organizational Skills, Business Management,
Inventory Management, Tact and Diplomacy, Customer Service, Initiative, and
Interpersonal Skills.
[10]The grievor successfully completed the first three phases of the selection process and
advanced to the presentation and interview phase. He was advised of his upcoming
interview, reminded to prepare a presentation on Ontario Short Crop and informed of the
equipment available to him for use during his presentation. The interview panel
consisted of Mr. Michael Fagan, Manager Knowledge Resources Group, Ms. Jennifer
Ronayne, Human Resource assistant, and Mr. Forsyth, District 17 Manager.
[11]As the Manager of the Knowledge Resources Group, Mr. Fagan chaired the interview
panel and participated in the design of the selection process. Specifically, Mr. Fagan
determined the qualifications for the position, developed the questions used in the
interview, arranged the product knowledge testing and selected the topic for the
5
presentation. He described the Product Consultant as a product expert who performed a
specialised role in serving customers, assisting with product evaluation, mentoring and
training staff, delivering product training to the public, including community and
business groups, assisting with media relations and serving as ambassadors for the
corporation. In his view, along with advanced product knowledge, it is essential that
PC?s have excellent communication and presentation skills. The Interview and
Presentation component of the selection process was designed to evaluate these latter
skills.
[12]The Candidate Rating Form used for the Presentation phase of the selection process set
out the critical areas that should be covered and included a rating guide of Poor, Fair,
Good and Excellent. It listed 17 Critical Areas, for a total of 51 available marks; the raw
mark was subsequently converted into a score out of ten. All of the panel members
testified that they did not award half marks. The following rating guide was set out at the
bottom of the page:
(E) Excellent = 3 (G) Good = 2 (F) Fair = 2 (P) Poor = 1
[13]The seven interview questions were scored on a similar scale. Each page identified the
Selection Criteria, listed the question to be answered and provided a point form, potential
response. Again, none of the panellists awarded half marks. Where the individual
question was scored out of ten, the following descriptive headings were set out, along
with the corresponding numerical range:
Score:____ Out of 10
6
RATING: Excellent Good Fair Poor
10 - 9 -8 7 ? 6 ? 5 4 ? 3 ? 2 1 -0
For questions marked out of five, the rating was:
Score:____ Out of 5
RATING: Excellent Good Fair Poor
5 4 - 3 2 1 -0
[14]There was some discrepancy in the marking method employed by the three panel
members. Mr. Fagan testified that he tried to determine the candidate?s qualification in
each of the identified skill areas by considering the key areas outlined in the score sheet
and awarding a numerical mark accordingly. He scored each question directly after
hearing the candidate?s response. He also confirmed that the outcome was not
determined by any single answer; a candidate could score poorly in one question but still
achieve an overall passing grade. In between the interviews, he recalled that the panel
would discuss the candidate?s responses and they would then total their individual scores.
None of the members suggested that scores be changed during this discussion; it was only
intended to ensure that they had all heard the same thing.
[15]Ms. Ronayne testified that she gave a mark for each point listed in the potential response.
She then totalled the points for her overall score. Her recollection of the process was that
each of the panel members would score the candidate, commit to a grade and then, after
individual grades were assigned, the panel would have a general discussion of the
7
candidate?s responses. She confirmed that the discussion did not result in any changes to
the assigned marks.
[16]Mr. Forsyth stated that he tried to correlate the answer that was offered by the candidate
with the sample responses; candidates were also given marks if they offered a relevant
response that was not contained in the answer key. After listening to a candidate?s full
answer, he would assess it in comparison with the potential response, consider the
relevancy of the answer to the Product Consultant position and then circle the appropriate
number score. He further testified that he assigned his marks directly after the candidate
gave their response and before they went on to the next question. He recalled that the
panel did discuss their marks; however, it was after he had committed to a score and did
not result in any changes to the marks he awarded to the grievor. With respect to the
rating process, Mr. Forsyth understood the rating scale to represent the range of possible
answers from the barest possible answer to one that was complete.
1
[17]The panel members provided further clarification of their method of marking and each
testified that they awarded marks for the interview questions on the basis of the total
marks available; none admitted to considering the descriptive headings of Excellent,
Good, Fair or Poor. Although they were aware of the headings, their score was awarded
as a numerical value without reference to the heading associated with the assigned score.
They each testified that they understood that this was not a relative assessment or
1
During the course of final argument, the Union advanced a position that was only vaguely
alluded to in its opening and which was not addressed in any questions it put to the panel
members. While recognising that it was a highly unusual manner of proceeding, the Union was
permitted to make the argument and the Employer was allowed to recall its witnesses to seek
further clarification.
8
competition but was an effort to determine whether the candidate was qualified. They
further understood that 50% was set as a passing grade and they interpreted this to mean
that they should only award a score of 50% or higher to answers which demonstrate
minimal qualifications. Each panel member confirmed that they did not consider a
response that garnered a numerical score that fell under the ?fair? heading to be a
response that was satisfactory, acceptable or qualified as a passing mark.
[18]They were also asked to consider various definitions of the word ?fair? and to provide
examples of when the word fair was used to convey a negative performance. They all
accepted that the word ?fair? had a wide range of meanings, that it frequently connoted a
positive outcome and that it rarely, if ever, corresponded with failure.
[19]The Product Knowledge component of the evaluation was assigned a weighting of 30%
of the final mark; the grievor?s raw score was 62/110. The Presentation and Interview
phase was assigned a weighting of 70%. On this segment, the final scores awarded to the
grievor were as follows:
a. Mr. Fagan: 22/75 - 4/10 on the presentation;
18/65 for the interview as follows:
Q 1, Organizational Skills, - 3/10
Q 2, Business Management, ? 3/10
Q 3, Inventory Management, ? 2/5
Q 4, Tact and Diplomacy, - 5/10
9
Q 5, Customer Service, - 2/10
Q 6, Initiative, - 2/10
Q 7, Interpersonal Skills, - 1/10
b. Ms. Ronayne: 20/75 - 5/10 on the presentation;
15/65 for the interview as follows:
Q 1, Organizational Skills, - 3/10
Q 2, Business Management, ? 2/10
Q 3, Inventory Management, ? 2/5
Q 4, Tact and Diplomacy, - 5/10
Q 5, Customer Service, - 1/10
Q 6, Initiative, - 1/10
Q 7, Interpersonal Skills, - 1/10;
c. Mr. Forsyth: 24/75 - 4/10 on the presentation;
20/65 for the interview as follows:
Q 1, Organizational Skills, - 4/10
Q 2, Business Management, ? 3/10
Q 3, Inventory Management, ? 2/5
Q 4, Tact and Diplomacy, - 5/10
10
Q 5, Customer Service, - 2/10
Q 6, Initiative, - 2/10
Q 7, Interpersonal Skills, - 2/10
[20]The marks of the three panel members were averaged for a score of 22/75 and weighted
at 70% for a final grade of 20.53/70. When this score was added to the product
knowledge grade, the grievor received an overall score of 38%, as rounded up from the
actual mark of 37.43%.
[21]The panel members explained why they awarded certain marks. Overall, Mr. Fagan
testified that the grievor?s interview was not very good and that he did not demonstrate
the qualifications required for the job. With respect to the presentation, Mr. Fagan
described the grievor?s performance as ?weak and amateurish?, without a logical
structure, poor use of supporting material, weak on content and lacking in confidence.
Ms. Ronayne explained that during the presentation she initially tried to score the grievor
throughout the course of the presentation. At the conclusion of his presentation, she
revised some of her marks to account for later impressions of the quality of his talk. For
example, where he began with some creativity, it was her view that he did not sustain that
throughout and so she reconsidered her scores in light of his overall performance. Mr.
Forsyth?s impression of the grievor was that he was not well prepared for the interview
and that frequently his answers did not offer much beyond what a CSR would do or know
and did not expand beyond the knowledge or skill required for his current position.
11
[22]Two of the panel members reviewed the scores awarded to the successful candidate and
compared the answers offered by the grievor to those offered by the incumbent. Ms.
Ronayne confirmed that she awarded marks to the incumbent on the same basis as every
other candidate: after recording the entire response to the interview questions, she would
assign a mark for every point that was contained in the model answer. Mr. Forsyth
confirmed that he considered her entire response, which he consistently rated as more
complete than those offered by the grievor. In his view the incumbent repeatedly covered
more points set out in the potential response and her marks reflected the breadth and
depth of her responses.
Submissions
[23]The Union submits that the grievor was a long service employee with experience in the
position of Product Consultant. He successfully completed the initial portion of the
selection process demonstrating satisfactory product knowledge and palate sensitivity.
With respect to the interview and presentation phase, it was the Union?s position that the
rating system utilized by the Employer improperly introduced a competitive element into
the evaluation of candidates. The marking scheme was not a pass/fail system, but rather
relied on ratings of Poor, Fair, Good or Excellent. It was submitted that ?fair? is generally
understood as representing the minimum necessary whereas ?good? and ?excellent? are
relative terms that exceed minimum requirements.
[24]In the Union?s submission, since the grievor was primarily ranked as having fair or good
responses in the interview and presentation phase of the selection process, he has
demonstrated that he meets the standard of minimal qualification. It was submitted that
?fair? should be given its ordinary, dictionary definition of satisfactory or acceptable.
12
Therefore, an answer under the heading of ?fair? demonstrates the minimum requirements
to establish competency. By the standard set out by management, the grievor
demonstrated that his performance was satisfactory and he should have been awarded the
position.
[25]The Union also maintained that the interview process was flawed. The Union indicated
that this was a secondary argument but highlighted a number of problems: the panel?s
evidence was inconsistent with respect to whether they assigned scores after discussing
the answers; the panel members did not adequately explain how they arrived at the final
score for each question; the grievor was given insufficient credit for his response to
Question 7 and was scored less favourably than the successful candidate for a similar
response to the Customer Service question; no half marks were awarded; and the
selection of a 50% pass rate was not justified.
[26]The Union submits that the grievor was qualified for the Product Consultant position at
the time the position was posted. He is a long service employee who met all of the stated
qualifications for the job: he had previous experience in the position, demonstrated the
required knowledge and palate sensitivity; had sound knowledge of retail operations,
procedures and customer service. Consequently, he should be awarded the position.
[27]The Union relied on the following cases in support of its submissions OPSEU (Pelikan)
v. Ministry of Health and Long Term Care (2007), 90 C.L.A.S. 39 (Devins); University of
th
Toronto v. CUPE, Local 3261,(Kyriakopoulos), (1995), 52 LAC 4 387; Bruce County
13
th
and SEIU, Loc. 210 (1999) 84 L.A.C. 4 381 (Rayner); Northwest Child & Family
th
Services Agency and CUPE, Loc. 2153 (1990), 12 L.A.C. 4 383 (Bowman);
[28]The Employer argued that the grievor must demonstrate that he was immediately
qualified to perform the job at the time posting closed. At that time, the grievor had only
been working in Store 771 for one month, where he performed some Product Consultant
duties along with his regular duties as a CSR. The grievor did not receive acting pay as a
Product Consultant and did not grieve his entitlement to an acting rate. It was submitted
that on the evidence, the grievor did not demonstrate that he was immediately qualified.
[29]The Employer further submitted that there were no flaws in the selection process. The
process itself has been in place a long time and has been used for many years to select all
Product Consultants. The Employer accepts that the selection under Article 21.5 (a) is
not a competition and the grievor was not compared to other candidates; the process was
designed to determine whether a candidate was qualified. Counsel submitted that the
skills required in the Product Consultant position involve a high degree of interpersonal
and communication skills. These traits are especially difficult to assess on paper and the
assessment of the panel should be afforded a significant measure of deference.
[30]In the Employer?s submission, the selection mechanism satisfied the five factors set out
by Vice Chair Knopf in OLBEU (Currans/Chaput) v. Liquor Control Board of Ontario
and was a fair determination of whether the grievor was qualified for the position. There
was a valid reason for the interview, there was an adequate opportunity to prepare for the
14
test, the test was administered fairly, the marks were reliable and the questions were
relevant. The Union has raised minor issues regarding the reliability of the marking
scheme, but there is no evidence that these concerns are so significant that they could
have affected the outcome in any meaningful way.
[31]With respect to the Union?s main argument, counsel for the Employer urged me to reject
the submission that ?fair?, as used in the interview rating system, means ?satisfactory? or
?acceptable? and that the grievor is therefore qualified. Rather, the focus ought to
properly be on the actual marks assigned by the panel members. The panel members
each testified that they did not rely on the headings and determined the appropriate
numerical score to be awarded. Alternatively, if the headings are relevant, ?fair? does not
connote qualified. It was suggested that dictionary definitions were of no assistance in
this instance nor could guidance be found in the language of the Collective Agreement.
At best, the headings can only be compared with one another as relative assessments of
performance with no independent meaning different from the marks that were assigned.
[32]With respect to the panel?s admission that they did not award half marks, the Employer
submitted that if this did represent a flaw in the competition, it was not sufficient to affect
the overall mark. The Union did not challenge the weighting of the different phases of
the selection process. Since the Product Knowledge component was only worth 30% and
the Interview/Presentation segment was 70%, there would have to be significant
upgrading of the grievor?s score in order for him to reach a passing grade of 50%. Even
if some additional marks were awarded, it would ultimately be of no consequence.
15
[33]The Employer referred to the following cases in support of its position: OLBEU (Dyer) v.
Liquor Control Board of Ontario (1983), GSB No. 506/80 (Saltman); OLBEU (Major) v.
Liquor Control Board of Ontario (2007), GSB No. 2006-0539 (Nairn); OLBEU
(Bechard) v. Liquor Control Board of Ontario (1998), GSB No. 0900/97 (Watters);
OPSEU (Sin) v. Liquor Control Board of Ontario (2008), GSB No. 2005-3601
(Dissanayake);OLBEU (Currans/Chaput) v. Liquor Control Board of Ontario (1998),
GSB No. 0923/97 (Knopf); OLBEU (Falcioni) v. Liquor Control Board of Ontario
(1993), GSB No. 2308/91 (Kaplan); OPSEU (Sutherland) v. Ministry of Finance (2006),
GSB No. 2004-0224 (Gray); OLBEU (Durrant/Evans) v. Liquor Control Board of
Ontario (1996), GSB No. 1586/94 (Dissanayake);Re Retail, Wholesale, Bakery and
Confectionery Workers? Union, Loc. 461 and Weston Bakeries Ltd. (1968), 19 L.A.C.
309 (Krever); Re CUPE, Loc. 43 and Mun. of Metro. Toronto (1972), 24 L.A.C. 318
(Weiler); Lantic Sugar Ltd. and Bakery, Confectionery and Tobacco Workers
th
International Union, Local 443 (1995), 51 L.A.C. 4 257 (MacLean); Dominion Colour
Corp. v. Teamsters Chemical, Energy and Allied Workers, Local 1880 (Bumping
th
Grievance) (2001), 101 L.A.C. 4 62 (Slotnick); OPSEU (Somers) v. Liquor Control
Board of Ontario (2007), GSB No. 2006-0063 (Petryshen).
Decision
[34]There was no dispute that the position of Product Consultant represents a promotion and
is governed by Article 21.5(a) of the Collective Agreement:
Where employees are being considered for a promotion, seniority will be the determining
factor provided the employee is qualified to perform the work.
There is also no dispute that this is a threshold provision and the relevant question is
simply that of qualification, not relativity.
16
[35]The Union?s primary argument is that the scoring template used by the Employer set a
higher standard than is permitted. The Union argued that by using a rating system of
Poor-Fair-Good-Excellent, the Employer effectively converted the evaluation process
into a competition rather than a pass/fail system which measured basic qualifications for
the job. In the Union?s submission, the ordinary meaning of ?fair? was equivalent to
satisfactory or acceptable and was not an adjective associated with a failing mark. Since
the grievor?s answers largely fell under the ?fair? or ?good? headings, he has demonstrated
that he was minimally qualified.
[36]I am sympathetic to the Union?s concern to the extent that I agree that the headings that
were used on the Candidate Rating Form were poorly chosen and invited confusion. If
the panel had first determined whether a given response was poor, fair, good or excellent
and then searched for the applicable number grade associated with that assessment, the
low or failing mark associated with a ?fair? response would have been problematic. In
that sense, the descriptive headings that appear on the rating sheet do not adequately
correspond to the number grade attached to it. The scoring system had the potential for
misapplication and could have skewed the rating standard above the required minimum
had the headings been relied upon.
[37]After careful consideration, I have determined that the issue raised by the Union was not
engaged in this instance. At least with respect to the marks assigned in the interview
portion, which represents the vast majority of the marks awarded, I find that the interview
17
panel were not influenced by the headings but awarded their scores strictly as a numerical
value. Each member of the panel testified that they focussed on an appropriate numerical
score when they rated the candidates. On cross-examination they admitted that they were
aware of the descriptive headings that categorised answers as poor, fair, good, or
excellent but all remained unshaken in their testimony that they did not consider the
headings in scoring the candidates during the interview.They either wrote down or
circled the appropriate number grade and did not consider answers which were awarded
less than 50% as meeting the standard of minimal qualifications. In light of the panel?s
evidence, I am satisfied that the panel was not misled or influenced by the headings and
regarded them as a purely relative measure of performance. Ultimately, they were guided
by their consideration of the merit of the answer, with full awareness that the assessment
was one of qualification only and that a pass of 50% was to be awarded if the minimal
threshold was met.
[38]Despite the interview panel?s evidence, the Union essentially seeks to rely on the
descriptive headings as a stand alone rating tool or as if it was utilised in some
meaningful way when the panel assessed the grievor?s qualifications. That would ignore
the evidence in this case. In these circumstances, the true measure of the panel?s
assessment was that set out in the numeric grade that they assigned. They did not
slavishly adhere to a mismatched marking scheme. They considered the grievor?s
answers and rated his response on a scale of 1/10 or 1/5, as appropriate. They were
aware that this was a threshold evaluation and that they were to determine if the
candidate demonstrated minimal qualifications.
18
[39]The Union made much of the ordinary, dictionary meaning of ?fair? and vigorously
submitted that ?fair? means satisfactory or acceptable. The Union further relied on the
answers given in cross-examination when none of the panel members could offer a
negative definition of fair. I have already rejected the Union?s submission that the
headings should be used to determine the grievor?s qualifications. I also reject the
Union?s submission that ?fair? means qualified in this case. Whatever the ordinary
meaning might be, what is relevant in this context is the manner in which it was used and
understood by the selection panel. I accept their individual testimony that they did not
consider an answer that was awarded a numerical grade that fell under the heading of
?fair? to represent an acceptable, satisfactory or passing response. At most the headings
simply provided a scoring continuum of a very general, relative scale, but without
independent meaning. A fair answer was better than a poor one but not as complete as a
good or excellent answer. In my view, the result advanced by the Union represents the
opposite of the panel?s intentions. It would convert a considered decision that the grievor
did not demonstrate the requisite qualifications into a conclusion that he was qualified.
[40]The one exception to my conclusion is with respect to the assessment of the Presentation
portion of the process. Based on the design of the rating sheet, the panel did initially
evaluate the grievor?s performance as poor, fair, good or excellent and subsequently
converted those ratings to a number grade. While I accept that the headings played a role
in the assessment of the Presentation, it would have had minimal overall impact on the
grievor?s score. This segment was only worth 10 out of a total of 75 possible marks.
Moreover, the grievor received 4/10 from two members of the panel and 5/10 from the
19
third. Even if the grievor?s mark were adjusted to reflect a passing mark, an average
score of 5/10 on the Presentation would not be enough to affect the outcome.
[41]The Union also raised a number of secondary arguments with respect to the fairness of
the selection process. It challenged some of the marks awarded to the grievor on specific
questions, raised some minor inconsistencies in the testimony of the panel members,
referred to the lack of justification for a 50% pass mark and cited the failure of the panel
to award half marks.
[42]I am not persuaded that any of these issues give rise to substantive concern over the
fairness of the selection process. With respect to the grades assigned on individual
questions, the panel members gave credible explanation of the marks awarded to the
incumbent and those assigned to the grievor. They were consistent in their impression
that the grievor was ill prepared, gave a minimal response and frequently failed to
demonstrate knowledge or qualifications beyond his current duties. In my view there is
simply no foundation for the suggestion that the grievor was graded unfairly or should
have been awarded a higher score on the two questions identified by the Union.
Similarly, although there were some minor inconsistencies in the panel members?
recitation of the marking process, the details were of no consequence to the ultimate
fairness of the process. Nor am I persuaded that the selection of a 50% pass rate
represents a flaw in the process. I accept the explanation of Mr. Fagan that this is a
longstanding baseline and one that represents a generally accepted standard for a passing
grade. Although he did not provide a lengthy explanation, it is not an arbitrary or
unreasonable decision.
20
[43]The panel member?s admission that none of them awarded half marks does raise a valid
concern. At least one question was marked out of five and therefore the failure to
consider a mark of 2.5 could skew the assessment of minimal qualifications above a rate
of 50%. That is, if only whole integers were awarded, a candidate could only achieve
40%, (2/5), or 60%, (3/5); it would be impossible to be given credit for a true minimum
pass of 50%. Nonetheless, correction of this flaw would not make any difference to the
overall outcome in this case. There was no evidence that any of the panel members
considered the grievor?s response to Question 3 as one that should have been scored as a
bare pass. Moreover, even if the grievor was awarded credit of an additional half mark
on this question, it would still leave his overall score as significantly below 50%.
[44]Finally, the evidence does not support a finding that the grievor has otherwise
demonstrated that he is qualified for the position of Product Consultant. The Union
relied on the grievor?s satisfactory knowledge and palate sensitivity, as well his previous
experience ?acting? as a Product Consultant to demonstrate that he possessed the
qualifications for the position. Although the grievor did demonstrate adequate
knowledge and palate sensitivity, the Union?s position disregards the importance of the
qualifications that were evaluated in the final phase of the process. This position of
Product Consultant requires significant interaction with the public and I am satisfied that
presentation and communication skills, as rated in the final phase of the process, are both
relevant and central to the performance of the Product Consultant?s duties. It is with
respect to these qualifications that the grievor was found to be unqualified.
21
[45] Nor do I consider the evidence that he has ?acted? in the position to be sufficient to
demonstrate that he was immediately qualified for the Product Consultant post. His
initial assignment was several years ago, he was not paid at an acting rate and the details
of the assignment were too vague for me to conclude that he was immediately qualified
when he applied in 2005. His assignment at Store 771 was at best for no more than one
month. Moreover, the evidence overwhelmingly supports the testimony of Mr. Forsyth
that the grievor was assigned duties normally performed by a Product Consultant as an
educational opportunity and not in an acting capacity: he was sent a letter confirming a
lateral transfer, he was not paid at an acting rate, other CSR?s also performed Product
Consultant duties and the grievor continued to perform duties associated with a CSR.
[46]After considering the evidence in this case, I am not persuaded that the grievor?s scores
demonstrate that he was minimally qualified for the position of Product Consultant, that
the headings tainted the competition by converting the assessment into a competition or
that the grievor has otherwise demonstrated that he already possessed the minimal
qualifications for the position. Nor do I find that there were other errors in the interview
process that had a material impact on the outcome of the competition. I would therefore
dismiss the grievance.
th
Dated at Toronto this 16 day of January 2009.
Reva Devins, Vice-Chair