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HomeMy WebLinkAbout1986-2413.Innes et al.89-03-31CQMMISSION DE REGLEMENT DES GRIEFS IN THE MATTER OF AKARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPsEcl (D. Innes et al ) Grievor -and - The Crown in Right of Ontario (Ministry of Correctinnal Services) Employer Before: For the Grievor: For the Emdover: For Mr. Tom Gushue: Hearings: F.J. Brandt Vice-Chairperson .J.p. MCM.?mUS Member P.A. Peckham Member H. Sharpe A. Ryder Counsel Fnwling & Henderson Barristers and SOliCitOrS V. Malpass Staff Relations Branch Human Resources Secretarjat J . Maair Bentley, Mcnair and Butlrus January 29, 19RR .?UlY 14, 1.988 Pecemher 5, 7. 1988 wcroduction This is a grievance of Dave Innes, Jaspinder Sahota and eaul Worford each of whom grieve the failure of the Ministry to award them the position of Industrial Officer at the Elgin Middlesex Detention Centre for .which they competed in a competition. The position was awarded to a candidate Erom outside the Public Service, Mr. Tom Gushue. Mr. Gushue attended the proceedings and was represented by -., counsel at t!le hearings, on July 14 and December 5 and 7th, 1988. Facts The position became vacant as a result of a vacancy which arose in the spring of 1986 when the Laundry Officer, Mr. Leonard Cook, became ill and went on a short term sick’leave. Mr. Charles Mulder, who was responsible for supervising the laundry operation, filled the vacancy by a series of rotational assignments until such time as the position was .permanently posted in October of 1986. I Mr. Paul Fleury, now Deputy Superintendent at the Elgin Middlesex Detention Centre, but who at the time of the competition was the Area Personnel Administrator, was responsible for writing the job advertisement, preparing the pre-selection criteria, reviewing the applications and selectiny the panel that would consider the candidates. The panel consisted of Mr. Fleury, Mr. Charles Mulder, Assistant Superintendent-Services responsible for supervision of the l.aundry (operation where the f : i i ( 3. \- position Was located, and Mr. Terry Muore. In preparing the job advertisement Mr. Fleury reviewed the Position Specification and spoke with Mr. Jim Cassidy, the then Superintendent and with Mr. Joiln Lockhart, the Deputy Superintendent. The opportunity bulletin listed the qualifications for the position as follows: practical knpwledge of, and experience in, a laundry operation, ability to effectively instruct and supervise inmates/young offenders, knowledge of pertinent safety procedures i ) and regulations, ability to exercise good judgment and tact and . -, ability to perform minor maintenance to laundry equipment. The job opportunity-bulletin specified that the competition was open to all qualified applicants within 40 kilometres of the work location. Mr. Fleury testified that it was decided to have an “open” competition since the Ministry Was looking for a good number of qualified applicants and that, while it was felt that some within the institution might have the qualifications, it was hoped that others in the .community might have qualifications which were at least as good as those possessed by persons within the Public Service. Mr. Fleury stated that in determining the pre-screening criteria he was primarily looking for candi,dates who possessed either laundry experience or correctional experience. These criteria were re>flected in the score sheet for the competition which assigned 72/142 marks for Knowledge (i.e. knowledge concerning a safe, secure and efficient laundry operation in a correctional setting); 30/142 marks for Laundry Experience ; ?0/142 narks \-~ for Laundry Maintenance/Repair Experience; and 20/142 marks forInstructional Experience in a Laundry Setting. Candidates were invited to submit their applications or resumes to their Superintendent who, in turn, would forward the applications along with an assessment of the candidate and copy of the most recent performance appra,i sal including information concerning attendance to the Regional Personnel Administrator. Mr. Fleury stated that the practice of seeking an assessment from the Superintendent was a long standing practice and was designed to give the panel information that might be i clarification of the resume was required. Twelve applications were received and seven candi from outside and five from inside the instituti interviewed. useful if dates (two on) were The members of the panel reviewed the applications before the interviews commenced. Each candidate was interviewed separately. At the beginning of each interview Mr. Fleury explalned the process that would be followed. He ~told candidates rf- that 2 there would be a number of formal questions asked; that candidates’ responses to the questions would .not be the sole basis for the decision; and that experience and knowledge of the job and other factors would be considered. Candidates were told to relax and to tell the panel as much as they could concerning the questions that were <asked and that their responses to the yuestions would be written down. At the beginning tof each interview Mr. Fleury ,asked the candidate general questions about their experience in the areas : i i, ,’ i . . i 5. 1) \- 0 f launllry experience, ttIe1r expert 1 ence I n ma 1 II t e n *a ,I c e ,a nd repair, and their instructional experience in a laundry setting. The answers given were written down by e,2ch of the members of the panel. Candidates were not provided with copies of the assessment of the superintendent; nor “l?KC+ they informed of any of the contents of those assessments. Mr . Fleury conceded that the information concerning laundry experience could have been obtained by asking the candidates to fill out a form. However, it was decided to proceed in this way in order to relax the candidates. It was thought that an informal discussion concerning ‘their prior experience would assist In that regard. Following this initial stage of the interview the candidates were asked specific questions, totalling eleven in number. These were asked by different members of the panel and, in each case, the answers were either written down on the score sheet or a check mark was made opposite the Ideal Response set down on the 0 scoring sheet opposite the question. 0 Five of the questions related to various technical matters concerning the operation of a laundry; four of the questions (1;3,4,6) related to correctional action to be taken with respect to pr.oblems involving inmates (eg. inmate searches for contraband, inmate assaults on other inmates); one question dealt with how the use of laundry equipment would be demonstrated to inmates; and one question dealt generally with the procedures to 1) \-- he taken to ensure that the efficient. 3 II n 1-1 r y hper.ation w,as effective <and At the conclusion of each interview each member of the panel independently totalled the scores for that candidate. After ~11 of the candidates had been interviewed the members of the panel reported their scores to Mr. Fleury who added them up. The following table sets out the scores given by each of the members of the panel for each of the grievors and for MK. Gushue. -e candidate: C. ~Mulder P. Fleury T. MOOKe Total -/ T. Gushue 86 87 95 268 P. Warford 56 61 62 189 J. Sahota 52 56 5s 163 D. Innes 48 so 59 157~s Given what the panel regarded as the clear superiority of ML. Gushue over that of any of the other candidates, including the grievor, the panel decided to recommend MK. Gushue for the position. 0’ In reaching their conclus personnel files of any of the o i on the panel did not review the t her candidates since they did not .~ regard it as necessary Y:! \!i!SW of the fact that MK. Gushue had demonstrated such superigr .;ibi!ity in the competition. Nor did they review the assr:.,.:::c:::L ~)f the superintendent which “3 s .attached to each of the -:..~ndidate’s application form. In short it was determined that si:~~(?, heving regard to the outcome of the competition, there W,liS .I significant difference between Mr. Gushue and the others, i y. w,-: -: r, ,:, t. necessary to look at any of the ’ .I’ 7. l -L- other considerations, inc1uBlniJ seniority, t t: 3 t ,111 g h t h 3 v ” entered into the decision. However, some information concerning prior problems that had been experienced with Mr. Warford, while he was in the position which was the sub jec~t of the competition, was brought to the *attention of Mr. Fleury ,annd Mr. Moore by Mr. Mulder, who h,ad been Mr . Warford’s supervisor. Although the selection panel’s first recommendation was to offer the position to Mr. Gushue it made an alternate recommendation to conduct a new competition. Mr. Fieury J testified that this recommendation was made in~the event that Mr. Gushue did not accept the position. It was felt that there would be other people in the community who would have a more desirable level of knowledge than that which had been exhibited by any of the other candidates. In cross-examination it became evident that the real reason behind the alternate recommendation was 3. concer~n that Mr. Warford not get the position. we shall deal later with the evidence l concerning Mr. Warford’s employment record. l Mr. Fleucy admitted that even if Mr. Warford had come close to Mr. Gushue in the competition the panel would not have recommended his appointment. Mr. Fleury candidly stated that Mr. Warford “would not have been a strong candidate regardless uf how well. he had done in the competition”. Since he did not do well it was not necessary to deal with that issue. However, the committee anticipated that, in the event that Mr. Gushue did not .3ccept the position, consideration would !;ave to be given to I % ; ” . 8. . . i 9 awarding it to Mr. Warford, <who ranked second behind Mr. Gushue \- and rather than recommend that he be awarded the position the committee instead made the alternate recommendation to hold a new competiti~on. In due course Mr. Gushue’s references were checked and he was offered and accepted the position. We turn to the evidence led by each of the grievor’s concerning their abilitirs.and qualifications. -0 Mr. Innes, prior to his coming to Canada in 1956, had served -Ta5 a cook, steward worked at various pr i .1972 when he began w ,i cook. While in that and laundryman in the Merchant Navy. He vate sector jobs in Canada as a cook until th the MiniStKy at the St. Thomas Jail as a position he was responsible for supervisin,g 2 inmates in the kitchen. This involved him in searching inmates to ensure than knifes weie not taken fr.om the kitchen and in ensuring that they were returned to their cells. In 1977 he became a Correctional Officer at the .Elgin 0 Middlese,x Detention Centre in which capac~ity he was involved in l the handling of inmates. From February -July, 1979 and again from September 29 October 31, 1986, he worked in the laundry at the Elgin Middlesex Detention Centre. In 1979 Mr. Warford was in charge of the laundry and Mr. Innes filled in for him when he was off sick. Around 1981 Mr. Warford went off on a long term disability and the vacancy was posted. Mr. Innes applied .for the position at that time but subsequently w i t hd r e w h i s application. The until he left for reasons of illness. At this time Mr. 1 n li e c: , and a number of others, worked <a s a laundry~ officer on a rotational basis, each for a period of approximately 6 weeks. During that period he had responsibility for the cleaning, pressing and distribution uf the laundry and for the supervision of inmates. He was not, however, responsible for any repair of clothing or any of the minor repairs Oi daily maintenance of the equipment that is normally done by the laundry officer. Mr. Mulder stated that during this period MY. Innes performed his c duties without any problems. When the position was’posted for a permanent replacement MY. Innes applied for it and supplied his resume. He testified as to the interview process and stated that at the beginning MY. Floury asked him questions concerning his experience. In his eviden~ce in chief he. stated that he could not recall whether or not he had been told that -he would be graded on his responses in this portion of the interview. On re-examination he expanded on this to claims that he was not aware that he was being graded on this part of the competition. He further claimed that had he been so aware he may have done better. As for the more “formal” questions Mr. Innes conceded that they were generally “fair” questions (although he (disputed the grade he had been yiven for some of his answers). However, he felt that greater emphasis was being placed on the security aspect of the laundry operation and that, for anyone to be able to answer some of the questions !in parti~culJr, questions 4 and L G), it would have been necessary to have had some experience working in a corzectional setting. Hc thotrqtlt that the dnsuers to some of the . questions were 111 the Stsnding orders which are not available to people outside the institution. In an obvious (if unstated) allegation against the integrity of Mr. Gushue and those responsible for the conduct of the competition, he stated that he didn’t believe that anyone who did not have such experience could have answered these questions well unless they had. either seen the questions beforehand OK had been “coached” in some way. Mr. Jaspinder Sahota is a li-tensed electrician who has been employe-d at the Elgin Middlesex Detention Centre as an electrician since 1980. As an electrician he has had experience in the laundry in maintaining and repairing the equipment there. He testified in examination in chief that he had experience supervising inmates throughout the institution. The number of inmates supervised would v&r,<.-- from day to d!;ly depending on what he was ~involved in doing. On some days he had no responsibility for supervising inmates. He estimated that on average he supervised 2 inmates per week for a period of S-6 hours per (day. On cross-examination it was suggested to him that the extent of his supervision of inmates amounted on average to 1 inmate for approximately 1 hour per week. He disagreed with that suggestion. COUZS;e sponsored by t!lr Mir;istry a?d recrived .3 certificate of satisfactory completion. Apart from the repair of machines in the laundry Mr. Sahota had no experience working in .and running tile laundry operation. When Mr. Cook went on 5F:i::rC %rrm leave and the opportunity to work in the laundry on a rotational basis arose Mr. Sahota applied to Mr. Mulder to be included among the rotation. Mr. Mulder spoke to him ,and tcld him that it was unIikeiy that he would be considered a part of the rotation since he was the only qualified electrician that wa 5 on staff .and, unlike the correctional oEEicers who were a part of the rotation and who could be replaced tempor,ariiy by unclassified staff, that was not possible for Mr. Sahota. In his evidence Mr. Sahota agreed with this account but stated that, in his conversation with Mr. Mulder, the latter had asked him to withdraw his application since he was already “more than qualified” to work there and that his withdrawal would ‘not be held against him i’n t.he competition. In his evidence Mr. Mulder stated that he co:.iI!? not recall telling Mr. Sahota that he:“’ was “more than qualified” for the posit.ion and thought it unlikely that he would !:,;:‘e ;a id that . He +lsu conceded that it would have been !~e?g~t,:? tz Mr. Sahota i !i the s ubsequent competition if he had !I-~.t::: .~i%,,en an opportunity to participate in the rotational assig:;:~?e:.:; ,.l:~ng with all the others. When the position ‘n‘,?z permanently posted Mr. 3ahota .applied Ear it and attended 3t the interview. The documentation 11. I i 12. Q accompanying his application included the assessment of Mr. TV Cassidy the Superintendent. That assessment recited that his performance as an electrician had been satisfactory. However, it went on to state that, although he was f:lmiliar with the repair and maintenance of the equipment, he had “no experience in the daily operation of the laundry” and that he “t? id not meet the minimal qualifications” as described in the opportunity bulletin. At’ the beginning of the interview, which Mr. Sahota characterized as a “chat”, he mentioned that he hoped his not’ l having taken the rotation would not tje held against him to which Mr. Mulder agreed. He testified that he was not aware at this point that he was being graded on his responses; that he thought that the panel was just trying to relax him. As for the formal questions asked in the interview he agreed generally with the evidence of Mr. Innes to the effect that sume of the questions could not be answered by a layman who had not had some first hand experience working in a correctional institution. He too did not know how Mr. Gushue could have scored as highly as he did, although he did not go so far as to suggest that Mr. Gushue had been coached in some way. MZ. Paul Warford has been employed in the Ontario Publi C Service since 1972. He began with the Ministry of Health wher e he was employed as a Cleaner at the London Psychiatric Hospital. IIe also worked for a period of 2 l/2 years in the laundry at the London Psychiatric Hospital where he w35 onr) of 24 employed in a11~ the variolls phases of a laundry. During that period he had ” i 13. responsibility for “5uperv15111g” 4 patients who were engaged in sorting clothes. In 1977 he began to work for the Ministry of Correctional Services at the Elgin Middlesex Detention Centre in the same position as that which in: the subjfct of t!lese proceedings. !le worked in that job for 4 years when he was required to go on leave as a result of a back injury. He was off for two years and returned as a CO 2, the position which he now occupies. His first performance appraisal, on January 23, 1978, rated him as satisfactory except in respect of attendance. He was off work for 12 days OVPL a period of 10 months and had been counselled for arriving late .3nd leaving early. In August of 1978 he was again counselled for poor attendance and a letter was put in his file. A performance appraisal for the period December, 1, 1983 to November 30, 1985, during which time he was a Correctional Officer gave him a satisfactory rating for all critical skills but noted that his attendance record was still “very much below average”. While he was working in the laundry from 1977 to 1980 he completed a Laundry Managers Course at the University of Guelph where he received an average grade of 82% over s.11 and a grade of 88% in laundry management. In the fall of 1986 he participated i n the rotational program that had been set IUP by Mr. Mulder pending the permanent posting of the vacancy creJted by the departure of Mr. Cook. During that peKiOd he esperiv.nced a number of problems. Several occurrence reports from Correctional Officers came to the attention of Mr. Mulder. These concerned the misplacement of clothing and the failure to deliver socks, T-.shirts and shorts to the units. On September 16, 1986 Mr. MuIder spoke to Mr. Warford concerning these matters and another matter concerning his failures to show up ,for work after he had been refused a request for a day off. Similar ,lrob!ems with items of clothing occurred over the next 2 weeks an2 Mr. Mulder again spoke with Mr. Warford on September 30, 1986 concerning these matters. When the position was ;jostrd at the end cf the rotaticlnal period Mr. Warford applied Esr it and sent in his resume. Accompanying his application was the assessment of Mr. Cass idy, the Superintendent in which it was confirmed that Mr. Warford had experience working in the laundry department at the London Psychiatr !c Hospital (although curlotisly no mention is made of his having worked in the laundry department at t11e Elgin ?liddlesex Detention Centre from 1977 to 1980); that he had carried out his duties as a correctional officer in a satisfactory manner; and that he met the qualifications outlined in the opportunity bulletin. The assessment also made reference to the 6 week rotational assignment and stated that Mr. Warford “was not able to carry out all the duties as expected.” Mr. Warford, like Mr. Innes and Mr. Sahota, testified that he was-not aware that he wa s being graded on his responses to the quest ions being asked at the beginning of the interview. He thought that Mr. Fleury was simply trying to put him at ease and felt that had he been aware that this was part of the competition hc would have rcspondcd in j w?y which would h,ave prod!lced a that generally his answers to questions wouId affect the eventual decision and thit experience was a relevant factor. tlowever , he maintained that he thou:;ht the first part of the interview wii’;’ just an ” i n f 0 L ma 1 c ha t ” a :; d thought that the examination proper began ‘when the different members of the panel !,egJn JS!?iW$ different questions. He !:ad no other complaints with rel;pect to the rest of the interview although he did state that he was never given any opportunity t.o respond t0 the concerns which Ministry had over his attendance or the problems which he been experiencing in the laundry during the rotational per These matters were simply not raised in the interview. the had od. Like Mr. Innes and Mr. Sahota, Mr. Warford also testified that he thought that candidates could not answer questions 3,4,, and 6 unless they had either had some experience working in a correctional setting or that they had been coached. Question 3 asked ,candidates to identify what areas of the body and clothing might conceal.contraband. The ideal responses included hair, body openings, seams of clothing, soles of shoes; inside socks etc. Mr. Warford conceded in cross examination th.at most people could correctly guess a number of the responses to this question without having had any correctional experience. Quest ion 4 asked candidates to identify what actions they would take if an inmate refused to be searched. The ideal responses were to contact the shift supervisor, to recommend that the inmate be placed in segregation until he submits to the search, and to complete an occurrence or a misconduct report. Mr ” .i, . . * 16. War f ord conceded that these responses could be made by someone exercising “common sense” and that it took nc, corrcctinnal inst i tuti’onal experience to be .ab?e to provide 3t le.3st s*me of these responses. Question 6 asked candidates what action they would take in the event that cone inlirate lssaulted another inmate in the laundry. The ideal responses were to notify a :hlft supervisor, order them to stop fightirili, .lttempt to break up the fight either alone, or if ser1ou5, whe:~: a L’ackup arrives, apyly~, first ,aid, complete various reports (accident, occurrence, misconduct). Mr. Warford conceded that, while it may be the case that someone without correctional experience may not know what a “misconduct” OK an “occurrence” report was, it needed no expertise ,to know what to do to stop a fight.. Mr. Fleury also testified a:; to the relationship between the answers to these questions and the possession of correctional experience or famil~iarity with the standing orders and as to the allegation that Mr. Giu:?!illr had beet? coac!led. He regarded t\~e latter claim as “outrageu;ls”. He stated that !:IIP qllestions which he prepared were kept i II I1 is custody until the day of the interview; that not eve? YK. 3ulder saw them until that day; and that he, personally, did II:~P: coach Mr. Gushue, whom he had never met until the day of t!lt: ir;!crview. With respect to the? ,;:.irstions in issue Mr. Fleury stated that he did not interld t,; !.l;c:e questions to test. :A candidate’s krrowledye of the st,3nL!i:.; .;r,Iers (which he did not ‘h,jve in hi:~; C2055 examination he c;lnr:el!ed that a number of the ideal responses to these Iquest. i ens could be found in the standing orders. However, he %Jintained that many of them were also matters of common sense. On behalf of the grievor5 it was submitted that in determining whether or not relative equality had been established between the gr ievors and Mr. Gushue (in which case seniority should apply) the best evidence of that relative equality is demonstrated ability to do the particular job in question. In that regard It Was submitted that the abilities and qualifications of the grievors should be assessed against the two major components of the job, viz operation of a’ laundry and supervision and control of inmates, and that care must be taken not to place too much weight on the repair/maintenance function which, it was argued, was less significant in that major repairs were typically done by maintenance staff and only minor repairs were done by the laundry officer. On the factor of ability to operate a laundry it was noted that Mr. Innes had both formal training and a number of years of experience in operating a laundry and that he showed his ability during the rotation. As for Mr. Sahota it was admitted that he had no operating experience but it was argued that he was denied .3n opportunity tn have that experience during the rotation and at that it would be 1%. i unfair to hold this against him when comparing his experience to that of other candidates. AS for Mr. Warford it was noted that he had experience working in the laundry at the London Psychiatric Hospital and also had 4 years of experience operating thelaundry at the Clgin Middlesex Detention Centre as well as the experience q3 ined during the rotation. With respect to the problems which he had in operating the laundry it was submit ted that there was no evidence which traced these problems to Mr. Warford and that he * was not given any opportunity during the competition to respond to the allegations that had been made against him. Mr. Gushue’s laundry operation experience was not denied. However, it was argued that, in terms of experience, there was little to choose between any of the 4 candidates. On the second major aspect of the job, viz, supervision and control of inmates, it was submitted that the grievor5 had far more experience than Mr. Gushue. Mr. Snnes had been a Correctional Officer since 1972; Mr. Warford had 4 years of experience with inmates in the laundry and has been a correctional officer since his return from being off work due to his, injury; Mr. Sahota had experience supervising inmates in the maintenance department and has a certiEicate of Custodial Responsibility. Mr. Gushue on the other hand had no experience or training in the supervision or control of inmates. it was suggested that tlis experience in supervising sther emi’hy’es wa1s I I 0 k transferable tt:l the supervision of inmates in respect of which ,A. i the Ministry employees. 1tse 19. Counsel submitted that, given these facts, there was an onus on the Ministry to justify its decision :lut to award the position to one of the yrievors. Whiie the results of the competition, in which Mr. Gushue scored mu c h better than gr ievors might constitute that justification, counsel argued that in a number of respects tile competition was flawed and should be discounted. First, it was argued that the competition was administered and marked in such a way as to favour Mr. Gushue and to prejudice the grievora. In particular, reference was directed to the marks awarded to Mr. Gushue and the grievors on the questions involving inmate supervision where Mr. Gushue scored better than both Mr. Innes and Mr. Warford .and only one mark below Mr. Sahota.. Counsel argued that these results “defied logic” given his lack of experience and training in t,hese areas. It was suggested that, considering that the questions required some technical knowledge of information to be found in the standing orders, the only credible explanation for these results was that the panel had been very generous in its grading of Mr. Gushue or that he had been coached. That his answers were a product of “common sense” alone was not, in-counsel’s submission, credible. Second, it was argued that the marks awarded for instructional experience in a laundry setting failed to take into account the fact that a laundry in a correctional institution is not an ordinary laundry and requires skills, in the supervision of I . i 20. inmates which skills are different fr~om t!~ose which may be obtained through the supervision of employees. Third, it was argued th,>t the competition was affected by factors outside the interview itself, The panel was i n the pussession of t t+! recommendation of the Superintendent, which recommendation, it wac argued, WC3.s intended to have s 0 me influence and must have had some influence in the marking. Thus, with respect to both Mr. Warford and Mr. Sahota, the panel was aware of the negative comments of Mr. Cassidy at the time that they began their interviews of these candidates. It was suggested that this would bias the marking. A second “outside” factor related to the decision of the Ministry to exclude Mr. Warford no matter how well he did in the competition, a decision which, it was submitted, rendered the competition quite “meaningless” for Mr. Warford. It was argued that the Ministry could not “blackball” Mr. Warford in this way. If it was concerned’ about his attendance or his performance in the past it should, counsel submitted, have made that a factor in pa ‘the competition. Having not done so and having failed to give 8 Mr. Warford an opportunity to address these matters in t 11 e competition the Ministry conducted a “sham” competition which, counsel submitted, undermined the v.alidity of the whole competition. In terms of relief counsel for the Union asked the Board to place the best qualified grievor into the position. If the Board were to conclude that ? or more of the grievor5 were relatively eql”“1 t;hcn the p 0 ‘; i t i 0 n s h o u 1 d g 17 t I) the 12 nr w i t h the fgr+~3te.t in the competition it was not possible to determine who should have the position it was suggested that the Board order a new competition. markedly superior to ,any of the gr irvors and that, consequently, the greater seniority of tl:r;: grievers was not a factor to take .” * into account. In his sabmi~sion, if the competition could be considered to h.ve been fairly adminictered then the Board s,hould be guided by its results. It was submitted that t!iere was no evidence to support what he characterined as the “outrageous” allegation that Mr. Gushue had been coached. Mr. 51:shue had no prior contact with any member of the panel ,and the only basis for the allegation lay in an inference that the Unl.;n .inc! the gr Icvors ;o!lght to ~draw from the fact that Mr. Gushug? h,lrl done well on the (questions involving inmate supervision and control. /~- f- In that regard it ji.is s:lbmitted that an euamination’of the questions involving ihmat+ supervision and control revealed that they could be well answer-2 by anyone by the xoe of common sense, a conclusion which W,~S .;~:;.y,;rte;! by Mr, Warford himself. While it was admitted that ::z, ,~~1 ::,i’ :> i c the ideal responses (eg. prepare an occurrence report r,r d “~:::,-,J~1::d”ct”) reguir?d some knowledge of the standing ocder: <or ;;: :“~i::ri:z wit-h1~n t 5 !J i ast itution, it was noted that on those I I;:::‘- I j :’ ~. M: ‘uL;j:!,5 :? i !! I: c i, re1ati v e 1 y 8 poorly with scores of 3,3, and 2 out of 10 respectively. With 22. respect to the arguments made concerning the ~lecision not to award the positi.on to Mr. War-ford irrespective of his score in the competition it was argued that the questions themselves were not structured in such a way as to ensure that Mr. Warford score poorly. Thus, if the Ministry wanted to “blackball”. Mr. Warford from the outset, it could have made attendance and discipline a factor in the competition. However, it did not do so. Those, considerations only became a factor after the results of the competition were known and should not, it was submitted, be relied upon a5 a basis upon which the reliability of the competition itself could be challenged. Moreover, in the administration of the test Mr. Warford was not treated any differently than the rest; He WJS asked the same questions as the others and given the same opportun .i everyone else to make his best case. With respect to the claim that the Ministry had .over in a way which noted that the this factor, a the maintenance/repair functions in the laundry ( gave an undue advantage to Mr. Gushue) it was scoring sheet only gave 20 out of 142 points to weight which counsel argued was appropriate. ty as valued Counse 1 submitted that the argument that ,instructional experience in a laundry other than a jail laundry should be discounted might be valid if the competition hid not tested the ability to supervise inmates. However, there were questions on this topic and Mr. G II :5 hue wa s t r e a ted the same as the others in those questions. 23. 7 i a prima facie case that the competition was defective and that the results of the competition should stand. F!lr thermore, if the Board were to find that the competition was defective as regards Mr. Warford (but was in other respects a fair competition) it was suggested that the Board should, on an assessment of the evidence respecting Mr. Warford, conclude that, even if the competition had been run fairly in respect to him, he would not have been awarded the job in any event. Counsel for the Ministry addressed the claim that Mr. Gushue COUld not have answered the inmate supervision and control questions unless he had been coached. She noted that Mr. Fleury was not looking for responses from the standing orders and did not consult the standing OKdeKS when preparing the questions. Moreover it was noted that the grievers themselves did not make any reference to the standing orders .in their responses to the questions. As for the claim that Mr. Gushue had been coached it I. was noted that Mr. Fleury had taken dare that the examination 8 questions were not revealed to anyone and stated that he, personally, did not meet Mr. Gushue until the day of the examination. It was submitted that in the administration of the examination all of the candidates were treated the same way in that all were asked the same quest ions and II 1 1 were rated independently by each of the members of the panel. The results of those ratings indicated that each member of the pclnel consistently rated Mr. Gushue higher than all of the grievers, * thereby attesting to the validity of the It was submitted th.et the claim of not appear to be advanced in argument) that the first portion. of the intervi, prucess. the grievers (which did that they were unaware ew was a part of t.he I examination, was simply not credible; that the grievers were made aware that experience was .e relevant factor in the decision; and knew or ought to have known' that when their answers were being written down they.weKe being graded on their responses. In summary it was submitted that the selection process was not flawed and that since the results demonstrated that Mr. Gushue was better tti.Jn the grievers by a "substantial and demonstrable" margin, his'selection for the position should be maintained. Whlle Mr. Innes was able to perform the job in a satisfactory manner his score in the competition was lowest and far below that of the other grievers and Mr. Gushue. Mr. Sahota had impressive qualifications to perform those duties related to maintenance and repair but he lacked the other qualifications for ,_ extensive experience in 8 the position. Although Hr. Warford had the position he had a number of problems while in it indicating that he was unable to perform the duties in a satisfactory manner. Thus, since Article 4.3 requires that primary consideration he given to qualifications and ability, and since' the competition, which counsel argued was conducted fairly, revealed a demonstrable difference twtwcen each of the yrievors and Mr. Gushue, the' issue of : !'..! .~3 :. I ve eq~~ality never a: nre 3 nd i t was 25. grievers over that of Mr. Cushue Decisioa It should be stated at the outset that there is no eviden,ce before the Board which supports any finding that, MI. Gushue was coached by anyone prior to the interview. The Union’s case is based entirely on an assumption that, si.nce Mr. Gushue had performed well on those questions involving inmate supervision * and control, questions which, in the Union’s opinion could only be answered well by someone who had worked in a correctional institution (which Mr. Gushue had not) or if the candidate had been coached. However, Mr. Wasford agreed with the suggestion that the questions could have been answered by the application o,f common sense. We have examined those questions and we conclude that they are of a nature which could be answered well bY a candidate who did not have correctional experience and who wa 5 not familiar with the. standing orders. We are also satisfied from the evidence that there was no I~ 8 prior contact between Mr, Fleury and Mr. Gushue in which a n opportunity would be available for Mr. Gushue to be coached. Consequently, we make an express finding of fact that Mr. Gushue was not coached prior to the examination. Second, we are not impressed by the claim of the grievers that they were. unaware that the initial part of the interview was an ~informal “chat” that was not a part of the formal interview. Thry ought to have been aware that, as the responses they gave to 26. i questions were being written down, this was a part of the formal l interview. The questions related to their experience which they knew was a facto; to be taken into consideration in the ultimate decision. Some of the gr ievors oluggested that they would have said more on this part of the interview had they been aware that it counted. Yet, they were told at the outset to tell the panel as much as they wanted about their experience. Third, we do not accept the claim of the Union that the selection ~’ panel had over-valued the maintenance and repair functions of- the job in a way which gave Mr. Gushue an advantage over the others. These duties were included in the Opportunlty Bulletin as one of the duties required to be performed in the job. None of the questions ,asked in the interview focused on this aspect of the job. Furth-rmore, the weight assigned to this part of the job, viz, 20/142, does not appear to us to be inappropriate. Fourth, we do not ,acce-pt the argument that, lnsofar as Mr. < ~. Sahota is concerned, it w.3~ not fair to 8 penalize him for his comparative lack of e:<perience when he had been denied an - opportunity to participate in the rotational assignments in the laundry. The reasons 51: excluding him were legitimate and indicate no bad faith on the part of the Ministry. In this respect Mr. Sahota w ,3 L: in no different position from any candidate who applies fz:r ,Ii job without having had as much experience in the posit !:~::I is :zther candidates against whom he is competing.’ His experieric,? or ?,ack thereof is ,a part of what. he treated as having had the requisite experience when, in fact, he has not had it. That would be unfair to other candidates who have the experience. Fifth, we do not consider the fact that the panel was in possession of the assessment of the Superintendent at the time that it conducted the interviews as fatal to the fairness and integrity of the competition. It was suggested by counsel, in argument, that as Mr. Cassidy was a superior of at least two of l the three members of the panel, they would be unduly influenced by his comments and would allow his opinion to colour their own views of the candidate. Mr. Fleury stated that the purpose of having this information was to assist the panel in deciding what to do in the event that more than one candidate demonstrated re.lative equality; that assessment, along with other information, including seniority; was to be considered at that juncture. As it turned o;t it was unnecessary to consider those assessments since Mr. Gushue had achieved a score which was markedly higher than that of any of the other candidates including the grievers. The evidence does not persuade us that these assessments influenced the panellists in how they graded the candidates. It does not appear that the assessments were studied at length before the interviews began. Moreover, except for Mr. Warford, the accompanying letter from Mr. Cassidy does not add any information which was not obtained from the ‘grievor-s during the 1 part of the interview. initia 20. 8 We turn, finally, to the way in Mr. Warford. Once the results of the competit evident that, among the grievers, Mr candidate most likely to be awarded which the Ministry treated ion were known it became Warford was probably the the position, in the event that Mr. Gushue did not .accept the offer. His experience in the position was the longest of any of the candidates and he came second in the competition, 26 points higher than the next ranking grievor, Mr. Sahota. Yet the members of the panel were concerned .* about Mr. Warford’s ability to do the job, having regard to the problems which he had experienced during the rotation period. As a result of this concern the panel’s alternate recommendation of a new competition was made. However, ill disposed the panel may have been to having Mr,. Warford succeed to the pos i.t ion, we are not persuaded that the competition should be voided on this account. The evidence is clear that Mr. Warford was not treated any differently than any of the other candidates during the competition. He was asked the same questions as everyone else and given the same opportunities to impress the members of the panel with his experience and his knowledge of the job. It was not until after the results of the competition became known that attention was directed to his work performance when Mr. Mulder, his supervisor, informed the panel of the problems that he had been having. We see nothing improper in that. Indeed, in a number of cases before the Board competitions have been found to be flawed where the members of the panel did not have ,access to input from the supervisors of the candidates. Here that requirement has been met by having Mr. Mulder sit on the panel. The Union cannot be heard to complain where the input provided by a supervisor is negative in nature. Nor do we think that it is necessary in a competition lntervlew for the Ministry to afford a candidate .an opportunity to defend his employment record. Were that the case each interview would have to be structured separately for each candidate in order that the separate and unique employment 0 history of each candidate be made a part of the interview process. The competition is intended to be a process wherein information concerning the suitability of candidates for a particular position is gathered in a “systematic” way. That is why all candidates must be asked the same questions in order that all are judged according to the same standard. Mr. Warford’s difficulties while in the position are a matter of record. To our knowledge none of the occurrence reports or the counselling he received was grieved by him. We do not believe that the competition interview should become an 8 ,opportunity for a candidate to attempt to challenge the record. Consequently, we arrive at the conclusion that~ the competition was conducted in a fair manner and represented a n appropriate and systematic method of assessing the qualifications and ability of the various candidates for the position. In terms of prior experience the only respect in which Mr. Gushue suffers by comparison with that of the grievers is in 30. ?b e*ms of inmate supervision and control. However, insofar as that .was tested in the forma 1 interview and insofar as Mr. Gushue demonstrated knowledge of that function at a level superior to both Mr. Warford and Mr. Innes and only slightly below that of Mr. Sahota, we are satisfied that his relative lack of actual working experience in a correctional setting, should not disqualify him from having the position which he clearly won in the competition. l . In the result the grievances are dismissed and Mr. Gushue is T confirmed in the position. Dated at LONDON, Ont. this 31st day of Ma rc.h . 1999. G. J. Brandt, Vice ChairpPrson ” 1 DISSENT” J.Dh kHanus - Member G.A; Peckham - Member