HomeMy WebLinkAbout1983-0088.Strazds.83-12-13ONvmO d I ; /’
CROWN EMPLOYEES y
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GRIEVANCE
SETTLEMENT
BOARD
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
Before:
For the Grievor:
For the Employer:
Hearings:
OPSEU (Rita Strands)
Grievor
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The Crown in Right of Ontario (Ministry of Natural Resources)
Employer
E. B. Jolliffe, Q.C. Vice Chairman
A. G. Stapleton Member
I. J. Thomson Member
R. Nabi
Grievance Officer
Ontario Public Service Employees'Union
R. B. Itenson Senior Staff Relations Officer
Staff Relations Division
Civil Service Commission
September 29 & 30, 1983 '
DECISION
This matter originally came on for hearing before
a panel of the Board chaired by Vice-Chairman R.L. Verity, Q.C.,
at Toronto on June 23, 1982. No evidence was presented at that
hearing, but oral representations were considered, after which
the Board made the following order:
1. 'Ihe request for adjournment is granted sine die, with
the Part&es to arrange a convenient hearing date with
the Registrar of the Grievance Settlement Beard.
2. 'Ihe venue of the hearing shall be changed from Toronto,
titario to Dryden, htario.
3. 'Il-e Registrar of the Grievance Settlement Board shall
set aside the consecutive days for the Hearing.
4. NC Order shall be made as to costs.
Pursuant to the Order, a new panel was constituted
and the matter again came on forhearing at Dryden on September
29 and 30, when the Board heard the evidence and submissions of
the parties including the third party, Mr. Grant Craig.
Early in November, 1982, Mr. Craig won a competition
in respect of a position described as "Management Forester -
Crown Unit Forester 2b. in the Red Lake District, Northwestern
Region of the Ministry of Natural Resources.
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On November 26, 1983, Miss Rita Strazdz (now Mrs.
Rita Reynolds) who had ranked second in the competition, pre-
sented a grievance alleging a violation of Article 4.3 in the
applicable collective agreement, which is as follows:
In filling a vacancy, the Employer shall give primary consideration
to qualifications and ability to perform the required duties. Where
qualifications and ability are relatively equal, length of continuous
service shall be a consideration.
The griever requested of course that she be awarded
"the position of Unit Forester Zb, Red Lake, Ministry competition
#N.R. 253/82."
When she applied for the position at Red Lake the
grievor was not seeking a promotion. She was already a Unit
Forester in the Crown Management Unit at Temagami, classified
at the 2b level. Her reason for wishing to have what amounted
to a lateral transfer was simply that she planned to marry Mr.
R. Reynolds, who had been a Forester with the Ministry until
June, 1981, but left to take a. similar position in the same
district with Great Lakes Forest Products Limited. At the time
that company was negotiating with the Ministry a Forest
Management Agreement in respect of the Great Lakes Unit within
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the Red Lake District.
It is necessary to explain the somewhat unusual
events which followed the result of the competition.
On February 11, 1983, the griever tendered her
resignation, to be effective at the end of April. This was
accepted by District Manager R.B. McGee on February 16. Miss
Strazds was married to Mr. Reynolds on May 7, 1983, and now
resides at Red Lake. Thus, when the grievance came on for
hearing at Dryden on September 29, the griever was no longer
an employee and no longer a public servant. For that reason
Mr. Itenson, on behalf of the employer, raised an objection
that the Board lacks jurisdiciton to decide the matter at this
date, pointing out that appointments to positions in the class-
ified service are the prerogative of the Civil Service Commission
under The Public Service Act. After hearing argument on the
point, the Board with the consent of the parties reserved a
ruling and proceeded to hear evidence on the merits. Reference
will be made to the jurisdictional issue later in this decision.
For the successful candidate, Mr. Craig, hi.s career
history also followed a somewhat unusual course. Although he
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had been employed by the Ministry from time to time since May,
1978, on the unclassified staff or on special contracts, he was
technically unemployed when interviewed. His last job at
Atikokan (serving as an acting Unit Forester) had ended about
October 22. According to him, the Ministry said he had put in
so much time as a "casual" that he would have to take three
months off pending a possible appointment to the classified
staff, or he could have a contract for nine months at Atikokan.
Al though Mr. Craig won the competition and accepted
the offer of appointment "within an hour," he has never actually
filled the position advertised, which was that of a "Forester
2b" in the Red Lake Crown iJnit. Instead he was assigned to work
as a "Forester 2a" in the Great Lakes Forest Products Unit where
his counterpart employed by the Company is Mr. R. Reynolds,
husband of the griever. This curious result, as explained by
Mr. Craig himself and District Manager E.W. Everley, arose in
the following way.
Mr. Craig had been rated at the Forester 1 level when
working on the unclassified staff at Atikokan. District Forester
Peter Gagnon told him that the normal progression was from
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Forester 1 to Forester Za, not Forester 2b. The latter carries
a higher salary than 2a. Messrs. Everley and Gagnon then pro-
posed that he act as the Ministry's Forester in the Great Lakes
unit, not the Crown unit, and as a Za, not a 2b. He agreed to
this, believing that he needed,the experience, his previous
service having been in Crown units., In the meantime the work
in the Red Lake Crown unit was to conti.nue being done on an
acting basis by Mr. H. Multimaki, a Forester 1 who had not
applied for the advertised position. The net result of these
arrangements is that the Forester 2b position in the Red Lake
Crown unit, advertised by the Ministry in September, 1982, has
not been Tilled. It appears that, strictly speaking, the position
is still vacant.
It has been explained'that the plan for the Crown
Management unit had been devised earlier by Mr. Glen Swant.
He was then assigned to the Great Lakes Unit and took part in
negotiating for a forest Management Agreement with that'company.
When negotiations were well advanced he received a promotfon to
the post of Supervisor or District Forester at Nipigon. This
is said to have created the vacancy at Red Lake. The facts
are, however, that~ Mr. Mu ,1t imaki had been doing the work in the
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Crown.Unit for eat leastayear, and since November, 1982, the
vacancy in the Great Lakes Unit has been filled by Mr. Craig.
There is no evidence that the vacancy in the Great Lakes Unit
has ever been posted under Article 4.3 of the collective agree-
ment. As to this rather peculiar arrangement --- under which
the successful candidate fora2b. position in a specific Unit
has been given a different job in a different Unit with a
different classification --- the employer seems to rely on its
exclusive powers to organize the work and~assign duties under
section 18(l) of The Crown Employees Collecitve Bargaining Act.
It is doubtful, however, that an expedient of the kind described
above was what the parties contemplated when they agreed on
December 17, 1982, to the provision embodied in Article 4.3 of
the collective agreement, which is said to be effective from
January 1, 1982 to December 31, 1983.
We have to interpose at this point that the regularity
of what happened to Mr. Craig after he won the competition is
not an issue to be adjudicated upon by this Board at this time.
The grievance before us is that of Miss Strazds (now'Mrs.
Reynolds) and it relates exclusively to her claim that the
result of the competition conducted by the Ministry was
incorrect and a violation of Article 4.3 and that she ought to
have received the appointment. What occurred after.Mr. Craiq's
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success is not a matter on which we are required to pass judg-
ment. If it has any bearing on the issues in this case, it
must be taken into account, but only in relation to those issues.
Mr. Craig was listed as single in his application
for the post at Red Lake. However, he too seems to have plunged
into matrimony because he testified that following the appoint-
ment his wife left her job at Atikokan and moved to Red Lake,
where she has found other work.
Mr. Craig was duly notified of the hearing held at
Dryden on September 29 and 30, 1983. He also received a sub-
poena and was called by Mr. Nabi as the first witness. The
Board advised Mr. Craig that, separate and apart from his
capacity as a sworn witness, he had a right to speak on his
own behalf and to question other witnesses. He offered no
questions but made a statement and presented an argument after
the other parties had been heard.
It is common ground that the grievor in this case
had considerably more experience and seniority than the successful
candidate, Mr. Craig. The employer's position is of course that
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the choice of Mr. Craig was made'on merit after a competition
properly and impartially conducted. The Union's case is that
the griever's qualifications were at least equal, if not
superior to those of Mr. Craig, and that her seniority there-
fore ought to have been a consideration. The Union also finds
fault with the procedure by whtch the employer arrived at the
result.
Thus the two issues which arise in this case are
whether the competition was properly conducted and whether in
fact the grievor's'gualifications and ability were relatively
equal or superior to those of Mr. Craig.
.The course followed by the employer in conducting
the competition may be summarized as follows:
(1) At so&time prior to October, 1982, the Ministry
circulated a "Notice of Competition," Exhibit 3. It was
addressed to "Branch Directors and Field Offices." It identified
the vacant position, briefly describing the Red Lake Community
and the duties of the position, as well as specifying five
essential qualifications. It said the "Area of Search" was
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"Ministry Wide," adding the word "Open." In other words,
qualified foresters outside the Ministry would be eligible.
Applications to the Red Lake District Manager were invited,
to be accompanied of course by supporting material.
(2) The griever and her District Manager at.
Temagami had earlier made it known that she hoped for a position
in Red Lake. Indeed, Mr. Everley already knew the grievor and
her fiance and was aware of their plans.
(3) The District Manager received 19 applications
before the closing date, October 15, and all were acknowledged.
After screening, five candidates, including the grievor and Mr.
Craig, were invited to interviews at the end of October.
(4) The District Manager constituted a selection
committee: himself, District Forester Gagnon and the office
secretary and personnel clerk, Ms. Carole Foster. Mr. Everley
has testified that all three had previous experience in holding
competitions.
(5) Messrs. Everley and Gagnon prepared a written
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list of 10 questions, Exhibit 15, to be answered orally .by the
candidates. They also devised an 11th test, to be answered in
writing. Each question was weighted according to the importance
attached thereto, four receiving a maximum of 5 points each, six
receiving 10, and only one receiving 15 points, for a total of
95 points. These all appear at the top of the score card,
Exhibit 13.
(6) Messrs. Everley and Gagnon also prepared a check-
list (Exhibit 16) of answers they thought would be correct or
appropriate in responding orally to the first 10 questions.
(7) Before the interviews began, Mr. Everley spoke
privately to the grievor and separately to Mr. Craig. He seems
to have recognized their nervousness and sought to put them at
ease. Among other things he asked the grievor about her
marriage plans.
(8) At the interviews, the three members of the
committee took turns asking the predetermined questions. Each
member independently awarded points in respect of each question.
Thereafter their scoring was collated on the score card by Mr.
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EX?rley . He alone did the scoring for the paper test set by
the 11th question. The scores were totalled for each candidate.
For the 10 oral questions there was a maximum possible of 90
x 3 = 270. A maximum of 5 points could then be allowed for the
paper work by Mr. Everley alone, increasing the total possible
points to 275. It will be noted that the method use,d gave the
opinion of Ms. Foster --- or the opinion of District Forester
Gagnon --- value equal to the opinion of District Manager Ever
except that he alone did the scoring of the paper work, which
was worth only five points.
ley
(9) Following were the significant results: of a
possible 275 points Mr. Craig scored 183,,the griever scored
163.5 and Mr. Park 160.5. The other two candidates were far
behind.
(10) In respect of the 10 oral questions certain
variations were probably inevitable. On such occasion? there
are often honest differences of opinion, like those below.
(11) To the griever, District Manager Everley
awarded a total of 61 points out of a possible 90, rather more
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than his colleagues gave her. District Forester Gagnon awarded
only 49, Ms. Foster 51.
( 12) The Everley score for Mr. Craig was 62.
Gagnon score was 60, and Foster scored 57. These were re
close.
The
lative lY
(13) The score for Park was: Everley 53, Gagnon 54
and Foster 49.5.
(14) Scoring the paper work alone, Mr. Everley gave
the griever 2.5 points; he gave Mr. Craig and Mr. Park 4 points
each.
(15) The "Notice of Competition" had specified among
essential qualifications: "good knowledge of forest management
agreement principles and development procedures; sound knowledge.
of current forest management policies and techniques, Crown
Timber Act and Regulations," and also "demonstrated ability to
prepare and analyse forest management and operating plans."
Most of the 10 oral questions were well-designed to ,test the
candidates' kno\%?ledge and capacity in such matters. This Board
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however, considers that the first question was so inappropriately
worded as to have dubious value, and the seventh question was
probably worthless.
(16) The first question was simply stated: "Give
the procedures involved in laying charges under the Crown Timber
Act." The defect in the question is that it calls only for' the
procedure involved in a prosecution under that Act. Actually the
committee had a number of other procedures in mind as well. This
appears clearly from their model answers set out in Exhibit 16,
which include "civil court action to recover the value of the
timber" ,as well as seizure of the timber and prosecutions for
theft under the Criminal Code. Fortunately for them, the three
leading candidates seem to have divined what the committee had
in mind: of 30 possible points, the grievor scored 25, Mr. Park
23 and Mr. Craig 21.
(17) The seventh question had very different results.
It was: "What is the Performance Management Cycle? What are the
advantages/disadvantages?" Clearly, three out of the five
candidates knew nothing of the term, perhaps because they had
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never heard of it. Of 30 possible points, the three, including
Mr. Park, scored exactly zero. The grievor received 3 points
from Mr. Gagnon and 3 from Ms. Foster, but 0 from Mr. Everley.
Mr. Craig won 24 points out of a possible 30, which gave him
an 18-point advantage over the griever and an even greater
advantage over Mr. Park, who had done well on all other questions.
Indeed, if Mr. Park had equalled Mr. Craig's 24 points his final
total (at 184.5) would have exceeded Mr. Craig's final total of
183. Mr. Craig has testified he was able to answer the seventh
question because he happened to have taken a course in which
the "Performance Management Cycle" was-a subject. In the ~Board's
view the seventh question was unfair in that the term is not
generally known or understood. It is not surprising that only
one of five candidates (three of whom were undoubedly well
qualified) could give adequate answers. Moreover, the competition
was suposed to be "open" and it was not reasonable to expect
that a forester from the private sector could be familiar with
such an esoteric term.
(18) Notwithstanding two defective questions, the
Board considers that on.the whole the questions were, as
previously mentioned, well'designed to test the knowledge and
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ability of the candidates, and that the method of scoring was
not unfair.
(19) Mr. Everley has candidly testified that the
committee was much influenced by the relative "communication
skills" of the candidates.~ In their opinion Mr. Craig's
ability to articulate and explain his answers was superior to
that of the griever. Following the competition he telephoned
the District Forester at Temagami and obtained confirmation of
his own view that notwithstanding other excellent qualifications
the grievor lacked some of the qualities required in dealing
effectively with licensees who cut wood on Crown management units,
120) Apart from post-competitiontelephone calls to
the District Foresters at Temagami and Atikokan, Mr. Everley
had no information about the candidates other than their appli-
cations, the material filed therewith and their performance at
interviews with the committee. There is no evidence that his
colleagues had any more information than he did. Clearly., the
committee refrained from asking for any personnel file or any
letter of reference. Thus the committee knew nothing of the
candidates' record of performance other than what appeared in
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their applications. If there had been satisfactory or unsatis-
factory performance appraisals, the,committee would know nothing
of them. Nevertheless, Mr. Everley (the only member of the
committee to testify) considered that both the grievor and Mr.
Craig were experienced and qualified foresters. This is con-
firmed by the scores he himself awarded them: 61 points to the
grievor and 62 to Mr. Craig.
(21) In cross-examination Ms. Everley said he con-
sidered himself to be familiar with policy in respect of compe-
titions but he had not consulted any one in the Ministry about
it and he did not know the decisionsof this Board.
(22) With reference to Article 4.3 in the collective
agreement, Mr. Everley said seniority was not a consideration
because his committee had found that Mr. Craig's qualifications
and ability were superior to those of the griever: they were not
thought to be "relatively equal."
After reviewing and considering the course taken by
Mr. Everley's committee, as described above, this Board cannot
find that the competition was unfairly or improperly conducted
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or that the procedure was contrary to the requiremeqts of Article
4.3. Of course it is possible to find fault with the conduct
of almost any competition. Like most, there were defects in
thiscompetition but we do not think they were sufficiently'
serious to justify rejecting it. In particular, we think
it regrettable that the committee made no effort to examine
performance appraisals. The practice of ignoring such appraisals
has been expressly deplored by this Board --- and also by a
Manager of Staffing (in another Ministry) who testified in
Ellsworth 261/80. It is regrettable that the selection committee
in this case as in many others thought itself fully competent to
reach a conclusion almost exclusively on the basis of interviews
with the candidates. Nevertheless, we think the committee made
a sincere and rational effort to assess relative merits, and we
do not think the procedure used was so defective as to negative
the whole process.
h'e turn now to our own assessment of two candidates,
on the evidence placed before us at a hearing which continued
not for one or two hours but for several hours in which they
both spoke and ans~wered questions very fully. We also had the
advantage of examining many exhibits, including detailed position
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specifications for the grievor's former position in the Temagami
Crown unit and the advertised position in the Red Lake Crown
unit, as well as the Class Standards for Forester 1, 2a and 2b.
Mr. Craig had his early education in Kenora, leaving
in 1973 after Grade 13. Five years later he graduated as a
B.Sc. (Forestry) from Lakehead University at Thunder Bay. He
had a special interest in forest soils. In the summers of 1973,
1974 and 1975 he worked on pollution' problems with the Ministry
of the Environment at Kenora and Thunder Bay. In the. summer of
1972, however, he had his first experience with the Ministry of
Natural Resources assisting with wild life surveys in the Kenora
area. He again worked for the Ministry in the summers of 1976
and 1971. acting as a crew boss on various projects in the woods:
When Mr. Craig graduated in 1978 there was work for ,
him as a crew leader in the Red Lake District, ending in October.
Shortly thereafter he was used by the Ministry on contract for
about 17 months in three districts of the Central Region. In
1980 he became a member of the Ontario Professional Foresters
Association.
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From April, 1980, to about October 22, 1982, Mr. Craig
had another contract with the Ministry, this time at Atikokan.
Although rated as a Forester 1 in training, he acted as Unit
Forester in the Flanders CrownUnit, due to the illness of
another forester, and he was paid at the top of the Forester 1
range. During the whole of the period from 1976 to November,
1982, he was employed by the Ministry most of the time but
never received an appointment to the permanent staff --- i.e.
the classified service. Thus it was natural that he should
seek such an appointment when the opening at Red Lake was
advertised.
Like Mr. Craig, the griever was born in 1953, left
a Toronto school after Grade 13 and then entered the four-year
Forestry course at the University of Toronto, graduating with
a B.SC. degree in 1976. She joined the O.P.F.A. in 1978. Thus
her professional experience is at least two years more than that
of Mr. Craig. She has taken courses in horticulture and arbori-
culture offered by the University of Guelph. She too worked in
the forests of Northern Ontario as a Resource Technician in the
summer of 1975. She had also served as a forestry technician
with the Ministry of the Environment in the summers of 1973 and
1974.
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Since 1977 she has also taken courses given by the
Ministry at Thessalon, North Bay, Toronto, Sault Ste. Marie,
Thunder Bay and Kapuskasing. One of these was a Management
Planning course.
Immediately after graduation the grievor‘became a
Forester 1 in training, and two years later, in April, 1978,
was promoted to Management Forester 2b and placed in charge of
the Temagami Crown unit. Thus by October, 1982, she had four
and one-half years of experience in that capacity.
In her resume/, the griever pointed out that she had
been responsible for preparation of a ZO-year management plan
and an operating plan, as well as preliminary negotiations with
Consolidated-Bathurst Inc. for a Forest Management Agreement.
She said the unit included a wide range of enterprises, such as
sawmills, pulp mills and veneer mills as well as cutting oper-
ations by licensees. On comparing the position specifications
for the Unit Forester at Temagami and the Unit Forester at Red
Lake --- both in Crown units --- it becomes clear that the two
are very similar.
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Whatever the reasons may be, it is clear that the
griever had more professional experience than Mr. Craig. She
had been a Forester on the classified staff for more than six
years, most of that period as a Forester 2b in a Crown Unit,
responsible to the District Forest Management Supervisor. Mr.
Craig had acted for a year or more in a similar capacity ----
with much lower rank --- at Atikokan, but in four years he had
never won appointment to the classified staff. On the other
hand, Mr. Craig appears to have had extensive and very practical
experience in the woods as a resource technician and crew'chief.
Indeed he was working for the Ministry as long ago as the summer
of 1972.
In her testimony the griever said she did not think
the committee attached sufficient importance to her record of
experience. She liked her work at Temagami but felt she "had
no choice" about leaving. She resigned in February because she
could not "abandon" the position without jeopardizing her
grievance and her whole career. The District Manager at Temagami,
Mr. McGee, accepted the resignation on February 16, adding a
reference to her 20-year plan, Exhibit 11:
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I appreciate your contribution over the past 5 years (April 1st)
as a,unit forester, also your help with the district land use
plan, these last few months. The management plan you have prepared will serve to guide and improve Forest Management
practices on the Temagami Unit for the next 20 years.
The gr
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ever again wrote Mr. McGee 'on March 3, Exhibit
clarify her resignation:
Further to my letter of February llth, 1983, please be advised
that I muld not be resigning an April 29th, 1983, if I had been
awardedthe Unit Forester's position in Red Lake. My reasm for
resigning, as you know, is that I am getting married in May and
will be moving from Temagami.
The griever also explained to the Board that she had
known her husband since university days, their engagement had
been a long one and they did not think marriage should be post-
poned any further. Notwithstanding her experience, no other job
has been offered by the Ministry. She said she would have been
"uncomfortable" if assigned to the Great Lakes unit (as Mr.
Craig was) but would have accepted it.
,id not detect Cross-examined, the griever said she d
any sign of bias or discrimination in the conduct
competition.
of the
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On his part Mr. Everley testified that "when Craig
was appointed we intended to put him in the Crown Unit, but
then we decided that since he had more experience we'd put him
in the Great Lakes Unit and keep Multimaki In the Crown Unit."
Theoretically in 1981 Mr.'Swant had been in charge of the Crown
Unit and Mr: Multimaki was supposed to be assigned to Great
Lakes, but Mr. Everley made .an exchange of their functions because
Mr. Swant was better qualified to deal with the Company. Thus
--- in theory at least --- it was the promotion of Mr. Swant to
another district which created the vacancy in the Red Lake Crown
Unit. Mr. Everley' also said that if the griever had won the
competition he could not have shifted her to the Great Lakes
Unit because of her husband's work there with the Company.
Mr. Everley agreed that Mr. Craig, still classified
2a. is being paid less than the griever would have received
as a 2b. He also agreed with her testimony that he had said
success in the competition would depend on the scores given for
the oral and written tests.
The Board is satisfied that both Mr,. Craig and the
,grievor were well qualified to fill the position which had been
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advertised. Undoubtedly the result was affected by certain
diferences in personality. Mr. Craig is a very confident and
able young man who candidly spoke of his ambition to rise in the
public service --- or in the private sector. He demonstrated
superior communication skills when examined by Mr. Nabi and Mr.
Itenson, and again when he was invited to state his own. case
after the evidence and arguments of the other parties had been
concluded. It is significant that the resume' he had submitted
with his application, Exhibit 14, is a model of its kind,
exceptionally well-organized and well-written, with considerable
detail. He also 'gave 12 Forestry officials as references ---
not one of whom was consulted by the committee.
The griever too has a pleasing personality but
appears to be somewhat reticent and reserved. If she seemed shy
or diffident in testifying it was probably due to,the same
nervousness which troubled her when she faced the committee,in
October, 1982. On balance we cannot disagree with the committee's
conclusion that the "communication skills" of Mr. Craig were
superior to hers. In addition, even if the seventh question is
excluded from consideration, the ~scores awarded on Exhibit 13,
give Mr. Craig 159 points and the griever 157.5. It was dose.
but there was asmall margin in his -favour.
. . .
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It can be argued of course that such a small difference
in scoring is evidence that the two candidates were "relatively
equal" in merit. The argument is persuasive, but we think the
committee members were entitled to take into account their
impression of relative communication skills -- as they undoubtedly
did. In that category it is clear that Nr, Craig had a definite
advantage. In any~event, Article 4.3 does not make seniority
the "governing factor." It provides that where the meritsare
relatively equal, s~eniority "shall be a consideration."
The grievance referred to arbitration alleged a
violation of Article 4.3. We have concluded that the competktion
in respect of the advertised position was not improperly condilcted
and that the result was correct. For reasons heretofore stated
the grievance cannot be sustained and must be dismissed.
In view of the result, there is no need to express an
opinion on the employer's objection to jurisdiction, raised at
the outset of the hearing in Dryden.
Although the grievance itself has been disposed of, we
deem it proper to add a postcript, with a recommendation.
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The Board,is troubled by the fact that the vacant
2b. position in the Red Lake Crown Unit was not filled as a result
of the competition. Instead, the candidate who won the competition
was shifted (with his consent) to a 2a. position in a different
Unit. In the mea.ntime, according to Mr. Everley, a Forester 1
has been acting as the Unit Forester in the Crown Unit. Mr.
Everley asserts that this arrangement was not contemplated at the
time of the competition. It is certainly inconsistent with the
very specific statements made in Exhibit 3, the "Notice of Compe-
tition." We have serious doubts about the propriety of so lightly
casting aside what had been advertised throughout the Ministry.
Further, in ,such circumstances, it may~be questioned
whether it was proper to ignore the candidate who placed second
in an attempt'to win the competition for the position in the
Crown Unit. If it was in fact a'2b. position --- as advertised
--- it seems strange that the duties of the position should
continue to be carried for a year or more by a Forester 1 (who
had not even applied for the advertised position) when --- as was
apparent in November, 1982 --- a qualified Forester 2b. was
available. It has not been explained why or how the requirement
for a Forester 2b., advertised in September, suddenly ceased to
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exist in November. The related question is whether the candidate
became entitled to the position when Mr. Craig (with his consent)
was transferred elsewhere.
The Board does not, in our opinion, have jurisdiction
to rectify what appears to be an anomalous and perhaps unjust
situation. It is therefore strongly recommended that the matter
be referred to the Civil Service Commission for further
consideration.
,,.;/i;,
.A’
_,+.I ~_ r
i
Dated at Toronto . this 13th day of December, ; /' ,,;$
1983 ,,I -~;'~&/~&J d. "'L ,; ;:
\ /-t/-;i / E.B. Jolliffe, Q.C. Vice-Chairman
"I dissent" (see attached)
I.J. Thomson Member
EBJ:sol A.G. Stapleton Member
With all due respect to my colleagues on the Board,
I cannot understand how they reached the conclusion they
did and denied the grievanc'e.
As~is pointed out in the award, the Grievor had
five years' seniority with the Ministry and was classified
as a Forester 2B.
The successful candidate, Mr. Craig, was not even an
employee of the Ministry and had never been appointed,to
the Classified Staff of the Public Service.
Article 4.3 of the Collecti ve Agreement states that
"primary considerati on be given to qualifications and
ability to perform t he required duties".
Surely from the evidence, no one can deny that the
Grievor has the qualifications and ability to perform the
duties of the pos i tion she applied for.
The majority concludes that Mr. Craig was superior
to the Grievor because he had better communicative skills
and could express himself better. Certainly, he is a
forceful, articulate and ambitious young man., In my
opinion, this is.not enough to override the qualifications
and ability of the Grievor, nor the five years' service with
the Ministry while he had no seniority. The results of
the oral test left Mr. Craig with an advantage of 1 l/2
points if question #7 is eliminated which the award points
out was meaningless and of all the candidates only Mr. Craig
knew what it meant. Even when Mr. Everly gave Mr. Craig
an extra 1 l/2 points for written question #ll', in my
opinion this does not make Mr. Craig superior.
I agree with the remarks and conclusion reached in
the majority decision that, in effect, the position posted
has not been filled by this competition and there is still
a vacancy.
I would have.awarded the Gri~evor the position she
applied for in her Grievance.
November 8, 1983 I. 3. Thomson
Member