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HomeMy WebLinkAbout1983-0591.Edwards.84-08-17591183 i IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Before: P.M. Draper P. Craven A.G. Stapleton Vice Chairman Member Member For the Crievor: 1. Freedman Legal Director, Grievance Section Ontario Public Service Employees Union For the Employer: Hearing: OPSEU (George 0. Edwards) and Grievof The Crown in Right of Ontario (Ministry of Consumer and Commercial Relations) Employer J.J. O’Shea Staff Relations Administrator Ministry of Consumer and Commercial Relations June 7,1984 I I -2- The job competition with which we are here concerned was the subject of an earlier application to the Board (Edwards, 36/83) which was heard by the present panel. Having found that the Selection Committee had not dealt with the issue of relative equality as between the Grievw and the successful applicant, the Board directed that it reconvene and review _ the information and documentation already before it regarding the two applicants, including the material submitted by them and the results of the test conducted during their interviews, and either confirm the selection it had made or award the position to the Griever. The Board also directed that the Committee give proper consideration to the education and training of the two applicants. The Committee met, determined that the two candidates were not relatively equal, and confirmed the selection of the successful applicant. The Union thereupon requested the Board “to further determine the matter put before it.” On the instructions of the Chairman of the Board, the Registrar informed the Union that the Board, having issued its decision and not having retained jurisdiction, was without jurisdiction. The present grievance, alleging a new violation of Article 4.3, went before another panel of the Board, which ruled that while the issues raised in Edwards, 36/83 have been determined, and the Board is functus officio in relation to that matter, the Board can and must determine any new issue regarding an alleged violation of Article 4.3 which arose following that determination. Since it had heard no evidence going to the merits, the panel, the parties consenting, referred the case to the present panel in view of 1t.s familiarity with the surrounding circumstances. At the outset of the hearing, the Board made the following rulings, ir 3. j -3- , Mr. Freedman inquired if Thomas Boyle, the Chairman of the Committee, was present in the hearing room and on being told that he was not, informed the Board that he believed he had been given an undertaking by Mr. O’Shea that Boyle would attend the hearing. Mr. O’Shea denied that he had given such an undertaking. He had, however, informed Mr. Freedman that he intended to have Boyle attend, but had later changed his mind: The Board accepted Mr. O’Shea’s assertion that no undertaking had been given, but expressed the opinion that Mr. Freedman, having relied on the information received from Mr. O’Shea, had been put at an unfair disadvantage. Mr. O’Shea was requested to arrange for the attendance of Boyle, which he did under protest. Mr. O’Shea requested a preliminary ruling on the types of question that would be permitted. The Board denied the request on the ground that rulings in that regard are properly made as necessary during the course of a hearing. Mr.’ Freedman argued that the issue of relative equality is analogous to the issue of just cause in a discipline case and’that the primary onus in the present case thus rested with the Employer. The Board rejected the argument on the ground that a party alleging a violation of ArtJcJe 4.3 bears the onus of proof of the allegation, regardless of the particular aspect of the process required to be carried out by the Employer that is in issue. In the earlier case the Board found no fault with the composition of the Committee, the conduct of the interviews, the questions put to the applicants, the points assigned to the various questions and categories, or the scoring procedure. The Board did find that the Committee had failed to deal with the issue of relative equality and had not considered all the information before it regarding the education and -4- training of the Crievor and the successful atiplicant. In the circumstances, the Board directed the Committee to remedy those omissions and to complete the selection process. The question now before us is whether or not the Committee, acting in accordance with our decision, has reached a correct result. For present purposes, the crucial evidence is that of Boyle, consisting of his written report of the meeting held pursuant to our decision and his testimony at the hearing. That evidence is to the effect that the Committee referred to our decision; that the members had before them the same material as before; that they reviewed individually the results of the test conducted during the interviews that had been held, and the educational backgrounds of the Grievor and the successful applicant as they related to the required duties; and that the unanimous opinion of the members was that the practical experience of the successful applicant 0 outweighed the experience and educational credentials of the Grievor. The Committee decided that the qualifications and ability of the two applicants to perform the required duties were not relatively equal and confirmed the selection of the successful applicant. The Committee was not required by the terms of our decision to embark upon a fresh selection process. It was to continue the process originally undertaken by determining, on the basis of all the material already before it, and as required by Article 4.3, the issue of relative equality as between the two applicants. The Committee has been convinced throughout that the successful applicant is a better qualified applicant than the Grievor, a conclusion that we found no fault with in our decision and which we see no reason to question now. Even considered alone, the test results obtained by the two applicants, as recorded in our decision, are persuasive in that -5- regard and would logically be accorded substantial weight in regard to the issue of relative equality. ‘7 The Committee had before it all the information and material necessary to make a finding as to relative equality. There is not the evidence before us that would justify the conclusion that it has not done so or, in fact, that the E,mpIoyer in any way has violated Article 4.3 as alleged. We are satisfied that the Committee has properly completed the selectron process as directed, and that its decision that the qualifications and ability of the Crievor and the successful applicant are not relatively equal is correct. The grievance is dismissed. DATED at Consecon, Ontario, this 17th day of August ,1984. 1 P.M. Draper, Vice Chairman QJGQL “SEE ADDENDUH - ATTACHED” P. Craven, Member File 591/83 (Edwards) tlDDENDUt4 I retain some misgivings about the manner in which the Selection Committee followed our direction in 36/S3 (Edwards) that it direct its attention to the issue of relative equality. In particular, I am disturbed by Hr. Boyle's evidence that his review of the griever's educational background led him to increase the grievor'e "point standing" in his own mind, but that he neither communicated this fact to other members of the committee nor solicited information from them about d"Y reassessment of the grievor that they may have been led to by their individual examinations of' the materials before them. In future I should be more reluctant to remit matters of this sort to the Employer for determination, and I should be concerned to supply specific directions when such matters are remitted. , Nevertheless, in view of the submissions made to us when we sat as a Board to determine Mr. Edwards' earlier grievance, and in view of the preliminary determination made by another panel of the Board in this matter, I' have reluctantly to concur in the Chairman's award.