HomeMy WebLinkAbout1985-0735.Alam.88-07-311
BETWEEN:
IN THE HATTER OF AN ARBITRATION
UNDER
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
BEFORE
THE GRIEVANCE SETTLEMENT BOARD
OPSEU (Mubarka Alam)
- and -
THE CROWN IN RIGHT OF ONTARIO
(Ministry of Community and Social Services)
BEFORE: G. Brandt Vice-Chairman
R. Russell Member ..~. G. Peckham Member
FOR THE GRIEVOR: I. Roland
Counse 1
Gowling and Henderson
Barristers and Solicitors
FOR THE EMPLOYER: C. Slater
Counsel
Legal Services Branch
Ministry of Community and Social Services
HEARINGS : August 7, 1986
December 8, 1986 i
December 15, 1986 r
March 16, 1987
May 19, 1987
0735185
Employer
AWARJJ
This is a grievance of Mrs. Mubarka Alam alleging that the Employer,
the Ministry of Community and Social Services, has violated Article 4.3 of the
collective agreement in that it failed to award her the position of Intake
Control and Statistics Officer following a competition for the job. Instead the
job was awarded to Ms. Gloria Sokoloski who had less seniority than the
grievor but who the Employer regarded as more qualified. In her
~giievance ?.he grievor requests that she be awarded the job and that she be
awarded full back pay with interest and benefits and’compensation for
personal and emotional suffering”. Ms. Sokoloski was notified of the
proceedings but did not attend at the .hearings except as a witness called by
the .Employer.
I.; The Union claims that the competition by which Ms. Sokoloski was
chosen was flawed. In order to appreciate the nature of this alleged flaw it
is necessary to set out certain facts concerning the origin of the position and
how and when it came to be filled.
Generally the job involves the provision of clerical and supervisory
support for the preparation of statistical, annual and monthly reports and
other computerized and manual data for the Social Assistance Review Board.
At the time of the competition the Executive Secretary to the Social
Assistance Review Board was Mr. Tom Barratt. As Bxecutive Secretary he ’
was responsible for staffing requests and the hiring of personnel into
positions. Two managers report to the Executive Secretary. ,They were Mrs.
Hounslow, the Office Manager, and Mrs. Fran Harper. Mrs. Hounslow has
supervisory responsibilities over the Intake Control and Statistical Officer.
,~~..
s
3
Prior to his arrival at the Social Assistance Review Board in October of
1983 Mr. Barratt had been Co-ordinator of the Operational Support Branch of
the Ministry in which capacity he had some indirect supervisory
responsibilities over people working at the Training Schools Advisory Board.
More specifically he had had some involvement in the hiring under contract
of Ms. Sokoloski as an Assistant Secretary to the Training Schools Advisory
Board.
In October of 1983 he was seconded to the Social Assistance Review
Board as a “trouble shooter”. There had been some problems with delays
between the time that an appeal had been lodged with the Board and the
disposition of it and he was brought in to make some changes. He reviewed
the various positions at the Board and the staff performing the various
functions. One of those positions was that of Statistics Clerk. Another W&s’.
that of Intake Control and Statistical Officer. The Statistics Clerk reported to
the Intake Control and Statistical Officer. At the time of Mr. Barratl’s arrival
at the Social Assistance Review Board it was an unclassified position and was
filled on a part time basis by Mr. A. Merritt. It was decided that this should
become a full time position and it was classified in October of 1984.
Similarly, some duties were added to the position of Intake Control and
Statistical Officer and a revised job specification was prepared in June of
1984.
Mr. Merritt left the position of Statistics Clerk and a competition was
held. Mr. Barratt was a member of the selection commitee which chose Ms.
Sokoloski for the job in October of 1984. The grievor was not a candidate in
that competition.
The incumbent in the Intake Control and Statistical Officer position at
this time was Mr. Andy Ralgla who was under the supervision of Mrs.
; _
I
4
~Hounslow. Mrs. Hounslow also indirectly supervised Ms. Sokoloski who
worked under the direct supervision of Mr. Raigla from October 1984 until
he retired on May I, 1985 at his normal retirement age. This case concerns
then process by which the vacancy created by Mr. Raigla’s retirement was
filled.
Mr. Barratt did not make a request for a staff requisition for the
position until March 15. 1985. Apparently there was some question as to
whether or not Mr. Raigla would work beyond his normal retirement age of
65 and it was not known until March that he would definitely be retiring on
May 1st. This request was authourized on March 18, 1985 and the request
was sent to the Civil Service Commission which canvassed its list of surplus
employees to see if there were any there who might be appropriate for the
position and who should be interviewed. It was not until May 6. 1985 that
clearance was given to post the position and conduct a competition.
The job was posted and applications were sent to the Personnel Branch
which reviewed them and determined that, of the 15 applications, 3 did not.
meet the formal qualifications. The files were then sent back to Mr. Barratt
and a competition was conducted on June 20, 1985 at which time.all 12 of
the qualified applicants were interviewed, each for one half an hour. The
selection committee consisted of Mr. Barratt and Mrs. Hounslow.
In the meantime Mr. Ralgla had left on May 1st and Ms. Sokoloski. wha
it may be recalled was at this time a Statistics’Clerk working under Mr. _
Raigla’s supervision before he left, was assigned to perform most of his
functions and worked under the close supervision of Mrs. Hounslow.
.’ In preparation for the competition Mr. Barratt examined the job
specification and prepared a list of selection criteria for the job. They were
as follows:
1. Progressively responsible clerical experience, preferably in a
computerized statistical environment.
2. Ability to analyze and prepare statistical reports.
3. A good knowledge of (or ability to quickly learn) the operation of the
Social Assistance Review Board.
4. A good knowledge of the Family Benefits Act, General Welfare
Assistance Act and other related socia1 legislation.
5. Good interpersonal skills and the ability to deal with Appellants,
lawyers, MPP. s etc.
6. The ability to understand, coordinate, and supervise a system. of data
input, verification, correction and analysis in order to ensure that the
statistical and data requirements of the Board are maintained.
7. Goad written skills to enable the preparation of memoranda, reports,
correspondence, etc.
Mr. Barratt then took both the selection criteria and the job
specification and prepared a list of questions which were to be asked of each
candidate at the interview. They were as follows:
1. From what I have told you about the Board, could you please tell me
how your skills and experience would allow you to perform the duties
required.
_. 2. Could you tell me under what piece of legislation the Social
AssistanceReview Board is constituted?
3. Can you tell me under what piece of legislation:
(A) Municipalities deliver social assistance ~,
(B) The Province delivers social assistance
I
._
., .
6
What types of persons are eligible under each of the above pieces of
legislation?
4. If an appellant walked in off the street claiming he was destitute,
what would you do?
5. How would you go about determining if the Social Assistance Review
Board had jurisdiction to hear the case?
.6. We have submitted to the~Chairman of the Board a recommendation
to purchase-2 IBM A K’s with remote access to 1 hard disc. The purpose is to
implement a system of indexing and tracking current cases as well as
providing a wide range of statistical reports to the Board. If the system
were purchased, how would you go about implementation?
7 al Could you please describe the M.B.R. process and indicate what
items would be important to include for a Board such as ours.
bj What are the legislated turn around times the Board faces.
8. One of the responsibilities of this position is to pretiare the Board’s
annual report, Could you describe how you would go about this task?
9. Could you please describe an optimum performance appraisal ~.
process.
10. What would you do with an employee whose job skills appeared to
be.deteriorating?
11. One of the requirements of this position is to determine the correct
Ministry area office from which to request a submission on the case. Can
you tell me the locations of the h&i&-y Area offices?
12. Do you have any questions for us? . . .
Next Mr. Barratt prepared a scoring sheet according to which he
identified 4 general areas to which he assigned certain marks. These were
7
1. Knowledge (Board, legislation, etc.) 35 marks
2. Technical Ability (Computer Knowlege) 25 marks
3. Communication and Interpersonal Skills 25 marks
4. Supervisory Skills 15 marks.
The selection panel was composed of Mr. Barratt and Mrs. Hounslow
who was put on the panel because the position reported directly to her. All
of the candidates were interviewed on June 20th at approximately one half
hour intervals. Ms. Sokoloski was interviewed second; the grievor was
interviewed last.
The process of the.interview and scoring was asfollows: Mr. Barratt ..~
began by descibing generally how the Social Assistance Review Board
operated and the types of things that it did. He then proceeded to ask each
candidate the questions in the order set out. Both he and Mrs. Hounslow
took notes while the candidates were responding. Mrs. Hounslow asked no
questions. No specific marks were assigned to the specific questions. Nor
was there any specific assignment of questions to any of the 4 general areas
although some questions related more directly to some areas than to others. ~.~
At the conclusion of each interview-Mr. Barratt and Mrs. Hounslo6,
without consulting each other, reviewed their written notes and entered a
mark for each of the 4 identified areas. Neither Mr. Barret nor Mrs.
Hounslow consulted the resumes provided by candidates before entering the
mark. Indeed they did not have then resumes with them in the examination
room. Mr. Barrett stated that he had read all of the resumes prior to the
competition. Mrs. Hounslow stated that she had not~seen the resumes.
Before the next candidate entered the room they totalled their
individual grades to reach a grade which represented the candidate’s score
I.
‘on the examination. In 3 instances (none of which involved either the
griever or Ms. Sokoloski) an original score entered by Mr. Barratt for a
particular area was changed after the total had become known. That
occurred once on Mrs. Hounslow’s score sheet. Throughout the process Mr.
Barratt and Mrs. Hounslow did not consult with one another.
; After all the interviews had been completed Mr. Barratt and Mrs.
Hounslow ranked the first 3 candidates. Their results were identical
8
although the grades awarded to each of the three varied slightly. Mr. Barratt
gave an 87 to Ms. Sokoloski. a 77 to Laurie Sanderson and a 76 to the
grievor. Mrs. ~~~~~~~~ gave an 85 to Ms. Sokoloski, a 72 to Ms. Sanderson
and a 69 to the griever. When these grades were averaged they produced
an 85 for Ms. Sokoloski, a 74.5 for Ms. Sanderson, and a 72.5 for the grievor.
Mr. Barratt and Mrs. Hounslow compared their rankings and decided:
that Ms. Sokoloski’s score was significantly higher than that of any of the
others and that she should be offered the position. On cross-examination Mr.
Barrett was pressed as to what he would have done if the grades had been
closer. He stated that if Ms. Sokoloski had achieved a grade of 76 or 74 or 73
he,would have re-interviewed in order to make sure that he was getting the
right candidate. However, since the scores here were significantly different
he was confident that Ms. Sokoioski was the better candidate: When asked
as to whether or not, if the scores had been closer, he did not think that the
grievor should be regarded as ‘*relatively equal” and therefore awarded the
~-job’ on the basis of seniority, he replied that he did not regard seniority as a
significant factor when he makes the final selection in a job competition.
In reaching their decision the panel did not consult the personnel files,
the performance appraisals nor the supervisors of any of the candidates. Mr.
Barrett stated that it was his experience from participating in a number of
I -_ ..~,
I
9
competitions in the past that this kind of information was of little assistance
to him in reaching a decision as to who to select.
There have been a number of cases before the Board dealing with job
competitions and the Board has had occasion to articulate certain standards
as to how the competition should be conducted. The leading case is that of
(91781 where the Board stated that
“the employer must employ a process of decision-making
designed to consider the relative qualifications and ability
of the candidate in a competition which will ensure thit
sufficient relevant information is adduced before the
decision-makers in order that they may make their
comparisons in the confidence that they are able to
thoroughly and properly compare the qttalifications
and abilities of the competing applicants.”
Later in the same case the Board stated that:
“the process must be designed to elicit in a systematic
manner sufficiently comprehensive infijfmation about
each applicant relevant to the qualific@ions and ability
required to perform the job in order that a fair and
reasonable assessment of the relative strengths of the
candidates can be undertaken and the fi@ selection
made.”
The Board went on to identify two respects in which the procedure
used in that case rendered the competition defective. They were the failure .~
of the employer to read the personnel files of the candidates and the failure
to ask the supervisors of the candidates to provide written evaluations of the
candidate’s work performtice. This kind of defect in a competition has been
dealt with by the Bqard in other cases (Hoffman. 22170; W 126179; and
.~
10
,McNa’mara 272/g 1) and the Board has in all of those cases found the
competition to be flawed.
There can, therefore, be no serious question that, having regard to the
jurisprudenti of the Board, the competition conducted in this case is flawed.
-The selection panel did not consult personnel files, performance appraisals or
the supervisors of the candidates. Indeed 6 the circumstances of this case
there is even greater reason for finding this competition to have failed to
measure up to the required standards. Although the selection panel did not
consult the supervisors of t&e unsuccessful candidates one of the members of
the panel, Mrs. Hounslow, was the successful candidate’s immediate
supervisor. Mr. Barrett was her indirect supervisor. Therefore, by virtue of
that fact the panel itself had the benefit of certain information about Ms.
Sokoloski’s abilities which it did not have with respect to any of the other
candidates including the grievor. That fact alone is sufficient to justify our
conclusion that the competition was fundameritally flawed. In this regard the
case bears some resemblance to Leslie (supra).
In addition to those already mentioned there are certain other
ekDRntS in this competition which render .it dekectiie. It cmm be doubted
that Ms. Sokoloski enjoyed an advantage in the competition by reason of the
fact that she had been performing most of the duties of the job for a period
of approximately 6 weeks between the retirement of the previous
incumbent. Mr. Raigla. on May I and the competition on June 20th. This is
not to say that any time a competition is conducted in which one of the
candidates is performing the duties on a temporary basis it must inevitably
and necessarily be flawed. However, care must be taken in designing the
-examination so as not to give the incumbent an advantage that can be said to
be unfair. We think that in this case there were elements in the examination
which did not meet that standard of fairness. Question 8 asked the
candidates to describe how to prepare an annual report of the Board. At the
time of the competition Ms. Sokoloski was engaged in precisely that task and
would; in our opinion, have had a substantial advantage over any of the
other candidates in demonstrating her particular ability and qualifications.
Another respect in which this competition failed to meet the
requirements established by the Board is with regard to the action of Mr.
Barrett and Mrs. Hounslow in virtually ignoring the resumes. One would
expect that these would contain valuable and pertinent information relative
to the question of qualifications and ability, information which ought to have
been assessed in the conduct of the competition.
The most difficult issue in this case is that of remedy. The grievor asks
that she be awarded the job retroactive to the date that Ms. Sokoloski was
hired and that she be paid compensation (with interest) in respect of the
difference between her salary and that payable to the position in question
from that date on.
There is no question that the Board has jurisdiction to award that kind
of relief. In R. v Pvees Union et at 35 O.R. (2d)
670, the Divisional Court, on an application to review an award of then Board
in Zubrvcki (loo/761 upheld a decision of the Board in which the position in
question was awarded to a grievor who had been unsuccessfu1 in a
competition. However, it is equally clear that there are a number of cases in
which the Board, in cases where it has found a competition to be flawed, has
directed that the competition be conducted again with or without conditions
attached.
In some cases the Board has ordered that all the candidates in the
original competition be entitled to participate again if they wish. &&fiqi
128/Sl;Fauolari.Kumal 1244/84.1353/84,1354/84;
&I&U&X& (supra); and Hoffman (supra). In others the Board has confined
the competition to the grievorls) and the successful candidate(s). (Chen
~70/79;Igj.l&h1pra).
12
In some cases the Board, rather than direct a new competition, has
remitted the matter to the parties and remained seised of jurisdiction.
Quinnfsupra);U39/84.
Where the Board has ordered that the competition be re-run it has
frequently directed that certain.conditions attach to the manner by which
the competition should be conducted. Two common conditions are that the
selection panel must not be composed of the same persons who conducted
the original competition and that the experience of the successful~incumbent
subsequent to his or her entering the position should not be taken into
account in making the selection. @gz,&et al (supra); Siddiai (supra). In
one case the Board issued specific directions as to the kind of information
that should b,e placed in the hands of the applicants prior to,the competition,
the nature of the questions to be asked in the examination, and the nature of
the other information about the applicants (eg. personel files and
performance appraisals) that must be considered by the panel. (Fazxolari et
al (supra).
The Board has frequently expressed a reluctance to exercise its
jurisdiction to award the job to a grievor directly rather than remit the
matter to the parties for a second competition. Generally, the reason given
is that the ~flawed selection procedure is such as to prevent the Board from
having before it sufficient information to permit it to make a judgment as
between the candidates. IEg%&lari: Leslie: McNamara: HoffmanXhen and
Dlon: Ottinn)
13
However there have been a number of cases where the Board has
ordered the job awarded to the grievor. Two which deserve special
consideration are &&cy&i fsupra) and l&gnt fSSS/82,556/82L m
was a sequel to McNamatatsupraI. In Mcnamara the Board had ordered a
new competition to be conducted between the original candidates, one of
whom had been Denise Parent. That competition was conducted and the
employer concluded that none of the candidates were qualified for the job.
Although the grievor scored highest in the competition the committee did
not promote her into the position because she failed to meet an absolute
standard of ability to perform the job.
The Board held that it was competent to substitute its judgment for
that of the selection committee. Fist, insofar as the second competition was
conducted in accordance with the principles as set down in the original
award in McNamara. it was adequate to determine the relative abilities of
the candidates. (In this respect &!xtl differs from the other cases in which
the Board was not satisfied that the procedure had been such as to elicit the
necessary information to permit a judgment to be made.1 Secondly, there
was evidence before the Board which persuaded it that the grievor had the
qualifications and ability to do the job within the meaning of Article 4.3 of
the agreement. Thirdly, the Board stated that, given the fact that a great
deal of time had-passed since the original competition, it would not serve the
interests of either-party to remit the matter back to the employer for further
proceedings.
Other cases between these parties in which the job has been awarded
. to the grievor without a second competition are Newburn
485/81,486/81. Eull.en 113182. Lethbridee603/80. and Carrinnton
462/80.
14
The question before us is whether we ought to follow those cases in
which the Board has ordered a rerun of the competition subject to certain
stated conditions or whether we ought to.enter upon that.task ourselves and
assess the relative merits of the grievor and Ms. Sokoloski. It was the
position of the Union that, while the competition itself may not have
produced information sufficient for us to make that determination, that
information was made available to the Board by way of viva vote evidence
and that the Board was therefore competent so to act.
We are not persuaded that this is an appropriate case for intervening
and substituting our judgment for that of the Employer by awarding the . .,_...
grievor the,job without a further competition. The cases in which the Board
has awarded the job involve unique considerations which, in our opinion, do
not obtain here.
We deal first with 7,&y&i and Parent, In Zubrvckt the ultimate
resolution of the dispute took over 4 years and required a number of
different proceedings before different tribunals. The grievance was filed in
October 1976 and the Employer raised an objection as to whether or not the
grievor was an “employee’ for the purposes of the Crown Employees
Collective Bargaining Act. That matter went to the Public Services Labour
Relations Tribunal in November of 1976 which, in April 1977 noted the
agreement of the parties that the grievor was an employee for the purposes
of the Act.
The matter then came to this Board in’ July 1978 where the Employer
again took the position that the Board lacked jurisdiction on the ground that
the grievor was not an “employee”. In September the Board rejected that
submission and ordered a hearing into the merits. The hearing on the merits
was held in July 1979 before a differently constituted panel of this Btiard
:, i. 4 :, .._ I 15
chaired by Mr. Adams. In May 1979 the Board allowed the grievance on its
merits, finding that the grievor had made out a “prima facie case that he was
at least equal in ability and qualifications to all of the other candidates’*.
However, that Board did not award the griever the job. Instead it remitted
the matter to the parties to fashion an appropriate remedy while at the same
time retaining jurisdiction in the event that agreement could not be reached.
Agreement was not reached and ln December, 1980 the matter came
back to the Board, this time before a panel chaired by Mr. Prichard. (Mr.
Adams having since resigned from the Board). That Board awarded the job
to the grievor. However, in doing so it recognized that it was exercising a
power that should be employed only rarely in special circumstances. One
passage from the award of the Board is instructive:
“...arbitration boards must be sensitive to the limits of their
institutional competence and to the advantages of relying
on internal processor for making promotional decisions.
However, there will be cases in which sensible labour
relations will require an externally imposed, final solution
and, in our opinion, the before is such a case. ”
On judicial review the Divisional Court agreed with that reasoning. (&.
V c 35 O.R. (2dI 670 at p. 676) Two of
the considerations which were material in awarding the job to the grievor in
that case were that there had already been a favourable determination on
the merits and that, having regard to the prior conduct of the employer, 2’ .:. there was some reason to doubt that a fair competition could be conducted
were one to be ordered.
Parent is also a case with unique facts and circumstances. As
indicated that was a case which came before the Board following a second
competition which the Board found to have been properly run and which
16
‘had therefore produced results which permitted the Board to make its’own
judgment. Moreover, in that competition the grievor had scored highest and
was only denied the job because of her failure to meet an absolute standard
required by the Employer, one which the Board found, in view of the fact
that the job was a relatively low level Clerk 3 job, to be unacceptable. In the
circumstances there would,have been little point in ordering a third
competition.
Therefore, in each of these cases, the issue as to the appropriate
remedy arose,within a context wherein there had already been a
determination that, vis a vis other candidates for the job the grievor was at
least relatively equal in qualifications and ability. In 2&y&i that
determination had been made by the Board. In Parenl it had been made
through the results of the second competition.
In the instant matter no such prior determination has been made. The
grievor stood a somewhat distant third in what was admittedly a flawed
competition. Moreover:& are not satisfied on the evidence that the facts of
this case disclose the element of bad faith that might be said to have been
present in Zubrycki. Counsel for the Union sought to persuade us that,
having regard to the prior association between Mr. Barratt and Mrs. ” ’
Hounslow and Ms. Sokoloski, they approached the interview with a
particular “cast of mind” which predisposed them in favour of Ms. Sokoloski.
We do not doubt that Ms. Sokoloski had an advantage over the griever in so
far as she was known to the members of the selection panel and had been
performing some of the duties of the job prior to the competition. That,
however, is not sufficient to brand the process as characterized by bad faith.
Were that the case a large number of competitions would be open to -“’
challenge on this basis.
17
Similarly, while it might have been better to begin the process of
replacing Mr. Ralgla earlier, in order that Ms. Sokoloski not enjoy the
advantage which she did by being assigned many of his duties prior to the
&&titionthe evidence indicates that Mr. Barratt acted as soon as he
became aware that Mr. Ralgla intended to take his retirement and the delays
In having the matter processed from there were no fault of Mr. Barratt.
The other eases where the Board has directed that the job be awarded
to the grievor, and on which the Union relies, do not persuade us to take a
different view of the matter. In Newburn and the selection
procedure was found to be flawed but the Employer elected to call no
evidence at all at the hearing. The Board found, not surprisingly, that the
Union had established a prima facie case that the grievors were “relatively
equal” to the successful incumbents, and, in the absence of any evidence to
the contrary,.awarded the jobs to the grievors. In the instant case the
Employer led substantial evidence with respect to the issue of “relative
equality”.
In &t&r&q there was an initial interview of 11 candidates as a
result of which the selection panel rated .the griever and the successful
incumbent “approximately equal’ (as the Board found). There was then a
second interview of just the grievor and the successful incumbent. That ..~
interview was found by the Board to be flawed.. The Board concluded that
since, on the initial interview, the two candidates were found by the
selection panel to be “relatively equal”. the job should be awarded ‘to the
grievor. In the instant case the selection pane1 did not find the grievor and
Ms. Sokoloski to be “relatively equal” in the competition. There was a
significant difference between their raw scores and the grievor ranked third
behind another candidate. We cannot conclude’as the Board-did in
.
18
I&i&h&e that, on the basis of the results of the selection procedure itself
the grievor demonstrated her “relative equality”.
In I&l&t the Board had evidence from the two supervisors of the
grievor and the successful incumbent (who like here had not been consulted
by the selection panel). One supervisor stated that the two were relatively
equal. The other stated that the grievor was “better suited” to the position in
question. In addition the Board found that, while the selection procedure
was flawed, the results of that procedure indicated that the grievor and the
successful incumbent were ‘close enough to be rated as relatively equal”.
Thus there was clear evidence before the Board to persuade it that, as
between the two candidates, the grievor had established “relative equality”.
The evidence before us does not point as clearly to that conclusion.,
Finally we refer toCattinnton. Unfortunately that award is to be brief
in its recitation of the facts and reasoning of the Board to permit us,to draw
any conclusions therefrom.
It is our conclusion therefore that the matter should be remitted to
the parties and a second competition conducted. However, we think it
important that there be a number of conditions attached to the conduct of a
second competition.
First, the competition should be limited to one beiween the griever
and Ms. Sokoloski. Second, the panel should not consist of either Mr. Barratt
or Mrs. Hounslow. Third, the panel is instructed to consult with the
supervisors of both the grievor and Ms. Sokoloski. Fourth, the panel is
instructed to review the personnel files, performance appraisals, and the
resumes of the candidates prior to the holding of the competition. Fifth, the
panel is to discount any of the experience that Ms. Sokoloski has enjoyed
during the period since her appointment to the position as the successful
I
19
candidate in the competition. The experience she had in the job, prior to the
competition is, however, relevant to the issue as to whether or not she
should be selected for it.
Each of these five conditions have been attached by the Board in
various of its previous decisions. We propose, however, to add two more
conditions, which to our knowledge have not yet been required.
We are concerned that Ms. Sokoloski not enjoy an unfair advantage
due to the fact that she has been in the job for approximately 2 years as a
result of a process which we have found to be flawed. To some extent that
advantage can be minimized by ,the condition which we have referred to
above which requires that the panel discount her experience on the job since
her having been awarded the job foBowing the competition. However, in our
view, it is inevitable that Ms. Sokoloski will enjoy an advantage in any
interview wherein the questions asked focus on specific tasks that are
required to be performed in the job, We therefore direct that, in designing
the competition, the Employer have regard to this injunction and refrain
from asking questions of that kind.
Secondly, we think it important to emphasize that the issue before the
Board concerns the entitlement of the grievor to the job as it was at the time.
that it became vacant. There was some evidence to indicate that the job had
changed significantly since Ms. Sokoloski entered it. That fact cannot
prejudice the grievor’s rights under the collective agreement. If the grievorr
is qualified for the job as it originally was there is no reason to believe that;
she could not, as did Ms. Sokoloski. perform those duties that came to be
added to since that time. Consequently we direct that, in conducting the’
competition, the selection panel have regard to the duties of the job as they
were at the time of posting. Were it otherwise a successful incumbent would ~~
._
::
20
‘always enjoy an unfair advantage in any second competition which would, of
necessity, be conducted some time after the job had originally been filled.
Consequently the grievance is allowed and the Employer is directed to
conduct a second competition subject to the terms and conditions set out
herein. We remain seised of jurisdiction in the event that difficulties arise
concerning the implementation of the conditions herein set down.
Dated at LONDON, Ontario this 31s~ day of August
1987
G. J. Brandi. Vice Chairman
R.:'Russell Member
G. Peckham Member