HomeMy WebLinkAbout1990-2065.Ford.93-06-21 Decision1993 - OPSEU (Ford) and Ministry of Community & Social Services, GSB#1990-2065, (Gorsky)
ONTARIO EMPLOYES DE LA COURONNE CROWN DE L’ONTARIO COMMISSION DE SETTLEMENT REGLEMENT DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARID. M5G 1z8 180, RUE DUNDAS OUEST,
BUREAU 2100, TORONTO (ONTARIO). M5G 1z8 (416) 326-1388 : (416) 326-1396 2065/90 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE
SETTLEMENT BOARD BETWEEN Grievor OPSEU (Ford) -and The Crown in Right of Ontario (Ministry of Community & Social Services) Employer BEFORE: M. Gorsky G. Majesky H. Knight Vice-Chairperson
Member Member FOR THE S. Watson UNION Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE EMPLOYER HEARING S. Mason Counsel Legal Services Branch Ministry of Community
& Social Services March 25, 1991 June 4, 1991 September 20, 23, 1991 October 4, 1991 January 24, 1992 February 24, 1992 March 16, 17, 1992 September 9, 11, 1992 December 15, 1992
D E C I S I O N i 1 A. Background The Grievor, Kirk Ford, except where otherwise noted, was at all material times employed in the Technology Support Branch "TSB" of the Information Systems
and Applied Technology Division of the Ministry of Community and Social Services (ISAT"), and had a seniority date of May 16, 1979. At the time of his hire, he was a Data Processing
Technologist. As at the date of the grievance (October 4 , 1 9 9 0 ) , he was classified as a Systems Officer 3 ("SO 3" with the position title of Senior Programmer Analyst, having previously
held positions as an S 0 3 . Within the TSB, the Grievor was in the Comprehensive Income Maintenance System "CIMS" , where he was responsible for the design, development and maintenance
of application systems, regardless of the technical environment. An example of the environment that he might work in was a centralized system based on an IBM mainframe; other environments
being systems running many computers referred to as DEC/VAX and local systems developed on microcomputers (PC's). One of the other branches within the ISAT Division is the Strategic
Systems Development Branch ("SSD"), where a posting for a Systems Analyst position, classified as SO3 occurred on July 13, 1990, for which position the Grievor filed an application.
Prior to a reorganization which occured in the spring of 1986, the ISAT Branch had only one division: IMS. At the time of the
2 reorganization the Grievor was classified as an S 0 2 . A s a result of the reorganization, the Division was divided into three branches, being SSD, TSB and the Program Technology
Branch. We are not concerned with the last mentioned branch. Prior to the reorganization in 1986, there were two environments within the ISAT Division: development and maintenance. In
one of the environments programmers developed systems and the systems were maintained in both environments. After the reorganization, Mr. Ford was assigned to the TSB Branch to carry
out, primarily, maintenance functions. Because he had a greater interest in the development of systems, than in their maintenace, he spoke to his then Director in the TSB who arranged,
through the Director of the SSD Branch, for an interview with David Court-Hampton, the Manager of the Systems Development Unit of the SSD Branch. He furnished Mr. Court-Hampton with
his resume and references. Following the interview, the Grievor was seconded to the SSD Branch in the fall of 1986 where he worked on the Young Offenders Act "YOA" project being carried
out in the Systems Development Unit of the SSD Division. Exhibit 35 represents the YOA application software design which the Grievor testified he was largely responsible for and which
the Employer says was mostly, especially the systems development portion, the product of others in the SSD Branch.
3 The secondment to the Systems Development Unit of the SSD Branch was intended to last for a period of six months, until March of 1987, although Mr. Ford, initially, regarded his secondment
to the SSD Branch as representing a permanent transfer until he was informed that the position that he occupied there would be posted within six months and he was to consider his being
on a six month assignment. In fact, Mr. Ford remained on the YOA project in the SSD for approximately one year and seven months. Mr. Ford regarded the YOA application software design
(Exhibit 3 5 ) as having been completed prior to his leaving the Systems Development unit and believed that the program he designed w a s in use by the Ministry at the time of the grievance
and thereafter. The Employer regarded the YOA project to have only been about a third completed at the time the Grievor left the SSD. At the end of the one year and seven month period
referred to, SO2 and SO3 positions were posted in the SSD Branch. Mr. Ford testified that at that time he was informed that the position he held in the SSD was clasified at the SO2 level
and he applied for both of the SO2 and SO3 positions posted. He was interviewed for the SO2 position but was denied an interview for the SO3 position. After being interviewed for the
SO2 position he was advised that he was not one of the successful candidates and was returned to the TSB, which the Employer regarded to be his "home" branch.
4 After his return to the TSB, Mr. Ford was reclassified as an SO3 following his being the successful candidate in a competition held in 1989. It is the latter position that he held
at the time of the grievance. The evidence made it manifestly clear that Mr. Ford has pursued his ongoing desire to transfer to the SSD Branch f r o m the time when the reorganization
occurred, and that he has done so with great persistance. As evidence of his interest and persistance is the fact that he has applied to transfer to that branch on appoximately 19 occasions,
and that he has sought essentially the same position as the one that is the subject of the grievance before us. Exhibit 4 lists a number of competitions for positions in the SSD Branch
that the Grievor applied for where he was unsuccessful. Arising out of these competitions were a number of grievances filed by him on October 13, 1988, December 1 4 , 1988, June 2 1
, 1989, July 27, 1989, April 9 and 1 9 , 1991, September 1 4 , 1990. In the case of two of these grievances, those dated December 14, 1988 and June 2 1 , 1989, Minutes of Settlement,
dated December 14, 1989, were entered into (Exhibit 5 ) . These Minutes of Settlement are as follows: GSB 8 /8 9 , 760/89 OPSEU #89B476 #89C756 In the Matter of Two Grievances of Kirk
Ford Dated December 14, 1988 and June 21, 1989
5 MEMORANDUM OF SETTLEMENT The parties hereby agree to settle the above two grievances of Kirk Ford on the following terms: ( 2 ) ( 3 ) The position of SO3 in the Strategic Systems Development
Branch which is the subject matter of the two grievances and which is presently vacant shall be posted and filled by competition, which posting shall be in or about March, 1990, unless
in the meantime the position is eliminated for lack of funding. The competition referred to in paragraph 1 may be an open competition (the "competition" The competition panel shall be
composed of four persons as follows: (a) Jean Ancevich -Manager of Employment Equity Branch, or if she is not available the next senior person in the Branch (b) Jean Linton, or if she
is not available John Van Vliet (c) Grace Wong, or if she is not available Lloyd Kishino (d) Vera Anklesaria The Ministry acknowledges that Kirk Ford is qualified to be interviewed for
the position of SO3 that is the subject matter of the above-mentioned grievances and will be granted an interview in the competition. This settlement is without precedent or prejudice
to either party with respect to any other grievance or matter. Kirk Ford hereby agrees to withdraw the two grievances subject to the fulfilment of the terms of this settlement. This
settlement shall be made an Order of the Board. Dated at Toronto this 14th day of December, 1989. Exhibit 3 is the posting of the position in question and is as follows:
6 SYSTEMS ANALYST (Systems Officer 3 ) (Schedule 6 ) (open $42,600 50,600 Demonstrate your skills with the Ministry of Community and Social Services, and participate in implementing
a network of departmental computers, LANs and personal workstations across Ontario using DEC VAX, All-in-One, hardware/office automation and INGRES relational DBMS/4GL. You will: develop
and implement information systems; identify user requirements; investigate systems opportunities and problems; provide technical guidance for staff; participate in user training. Location:
North York with occasional travel. Qualifications: demonstrated skill in systems analysis, design and development normally acquired through graduation in computer science; knowledge
of systemsdevelopment life cycle, including -data planning and prototyping techniques; excellent communication and interpersonal skills essential; development experience with current
minicomputer technology, preferably using relational DBMS/4GL productivity tools and office automation software. Resume/application must be received by Aug. 3 . Send to: File SS-96 Ministry
of Community and Social Services, Human Resources, Head Office Unit, 56 Wellesley Street West, 17th Floor, Toronto, Ontario M7A 2B7 In purported compliance with the provisions of the
Minutes of Settlement, the Employer posted the positions (Exhibit 3 ) the closing date being August 3 , 1990, the competition panel being as provided for in the Minutes of Settlement,
with Ms. Anklesaria serving as the chair. The members of the competition panel screened 42 applicants using the following criteria: (1) system analysis, design and development knowledge
and experience; ( 2 ) development knowledge and
7 experience with micro computers; ( 3 ) relational database knowledge and experience; and ( 4 ) life cycle, data planning and prototyping knowledge and experience. There were, including
Mr. Ford and Mr. Thomas, nine applicants who were invited to the interview portion of the competition of whom -five actually participated, including Messrs. Ford and Thomas. Of the five
candidates who were interviewed, Mr. Thomas had the highest score: 77%, and Mr. Ford had the second highest score: 58%. The panel unanimously decided that Mr. Thomas was the superior
candidate by a significant margine and that he would "commence work of Systems Officer 3 starting October 1, 1990." The test administered to the .candidates was made up of interview
questions, each worth a maximum of 10 marks (Appendix there was also a written exercise dealing with the subject his 27 1); of "transaction processing"; and an oral presentation on the
subject of "systems development" (Appendix 2 The maximum marks availabl e for the written content and presentation were, respectively, 10 a n d 1 5 . The maximum marks available for
the oral content and presentation were, respectively 10 and 15. The summary of the marks and, as well, the percentage scores are as set out in Appendix 3.
8 The interview schedule provided for a one and one-half hour period for each candidate. Both Mr. Thomas and Mr. Ford were interviewed on September 18, 1990, with Mr. Thomas' interview
taking place from 9:00 a.m. to 10:30 a.m., and Mr. Ford's from 10:30 a.m. to 12:00 noon. The Grievor's desire to move to the SSD Branch was based on his desire to move to what he regarded
as a more challenging work environment with greater chances for professonal advancement and because his assessment of his own skills caused him to conclude that he was more suited for
a development environment as is found in the SSD Branch rather than a maintenance environment as found in the TSB. When he was again unsuccessful in obtaining what he regarded to be
a lateral transfer from the TSB to the SSD, Mr. Ford,, on October 4 , 1990, filed the grievance that is now before us in which he alleged that he had "been denied unfairly the position
of SO3 as advertised in posting #SS96/90," and asked by way of relief that he "be promoted to the position effective the date it was filled by the successful applicant with full redress."
Mr. Thomas was notified of his right to attend and participate in the hearing, was in attendance and cross-examined Mr. Ford.
9 It was evident to the Board that Mr. Ford, after 19 rejected applications to move from the TSB to the SSD Branch, was of the view that he was being unfairly discriminated against.
The hearing of the grievance took up 11 days and counsel filed legthy written arguments in support of their positions in which the evidence and the law were meticulously analyzed. During
the hearing all witnesses were examined and cross-examined to a fare-thee-well. In the light of the Grievor's evident sense of frustration rejections, in order to give him and Union
counsel opportunity to address the issues, the admonition of Baron A.G. v. Hitchcock (1847), 1 Exch. 91, at p. 99, was relaxed: If we lived for a thousand years .instead of about seventy,
and every case was of sufficient importance, be possible, and perhaps proper . . . to raise every enquiry as to the truth of statements made .... mankind finds it to be impossible. after
13 a full Rolfe in somewhat sixty or it might pos s ib 1 e In f a c t In response to the excellent and lengthy presentation of evidence and argument by both counsel, we have endeavoured
to render a decision that addresses the issues that they dealt with. In the result, our decision is somewhat greater length than is usually found in these cases. However, to do less
would be unfair to the efforts of counsel. We are, however, concerned that such indulgence as was afforded the parties cannot be sustained in future cases because of the clash between
the wishes of parties for "complete" hearings, and the reality of time constraints and economics.
10 B. Position of the Union The position of the Union was that the Employer had failed to conduct the competition according to the requirements of the collective agreement (article 4
. 3 ) , the jurisprudence of the Board, and the Minutes of Settlement, and that the Employer should now be ordered to award the position to Mr. Ford. The parties made written submissions
by way of argument to the Board when it became apparent that the complexity of the evidence and the arguments made this the most appropriate means of doing so. 1. Summary of the Union's
Position Counsel for the Union relied upon the e idence as si pporting his contention that the competition was flawed in the following ways as set out in his summary of the Union's position:
(a) The Employer breached the Minutes of Settlement (Exhibit 5 ) in that: (i) the posting was required to be made "in or about March 1990, unless in the meantime the position is eliminated
for lack of funding," and the competition was not posted until approximately five months later, the closing date
11 being August 3 , 1990, the interviews being held on September 18, 1990; (ii) According to the evidence of Ms. Anklesaria, who chaired the competition panel the position was not eliminated
as result of lack of funding; (iii)T he vacancy, which was a subject of the Minutes of Settlement, was created by the departure of Arlene DiMitri from the position. However, at Exhibit
34, a Ministry staffing document, the reason for the vacancy is stated to be: "new position," and the "name of last/present incumbent" is listed as "new position" although the name of
"J.M. Fortier" (a previous holder of a position classified as an SO3 in the SSD Branch, whose appointment Mr. Ford had grieved) is crossed out. Ms. Anklesaria had no explanation for-this
discrepancy and referred to the Human Resources Representative who was not called by the Employer to explain the discrepancy. (iv) Mr. Thomas, referred to in the Union's argument as
"the alleged incumbent," was one of the members of the distribution list for a training program on a software program, referred to as "All-In-One," which was held in March of 1990 (Exhibit
10) and Mr. Ford was not given an opportunity to participate in this course. Mr. Ford
12 testified that the reason for his not applying for the training program was because he had not received any notice of it. It was submitted that the combination of the delay in posting
the competition pursuant to the Minutes of Settlement enabled Mr. Thomas to gain relevant training and technical expertise in the All-In-One program, which opportunity had not been made
available to Mr. Ford. Exhibit 10 discloses that the course was a five day course running from 9 a.m. to 5 p.m. each day. This was said to be significant because the job posting (Exhibit
3 ) and the interview questions asked (Exhibit 1 6 ) i.e. 21-23, indicate specific technical questions on the All-In-One program. Exhibits 8 and 9 were said to be examples of restricted
access to information on the All-In-One program. (v) Irrelevant considerations were said to haven been taken into account in the course of the competition a n d inappropriate questions
asked in the light of the duties and responsibilities of the posted position: (a) The Employer was said to have placed too much emphasis on communication skills: "while at the same time
not reflecting its own emphasis on communication skills and the scores and weights assigned to various questions or parts of the competition." M s . Anklesaria, who said she placed
C 13 great significance on communication skills, was said to have failed to reflect this significance in the method of evaluation which provided a possible 270 points for technical written
questions and answers, 25 additional points for written answers to a question and only 25 points for oral presentation and content involving a slide show. We were also asked to note
that other witnesses called by the Employer did not support the emphasis that was placed by Ms. Anklesaria on communication skills. (b) Reference was made to the inability of the Employer
to produce a position specification for the vacant position that would assist the Board in determining the relevancy of the questions. Reference was also made to the difference between
the witnesses called by the Employer as to the significance of the Grievor's experience at the TSB. We were asked to find that, "the duties of an SO3 require technical expertise and
knowledge of technical areas involving computer programming," and it was submitted that "the questions should have stayed within the technical area and degree of difficulty required
of an S 0 3 . " It was further submitted that: "Many of the questions are not appropriate
__.I-__._. ..^_I I _XI____..-----... 13 for an S03, they are too detailed, and instead are geared toward a Systems Manager." (vi) The Employer failed to give sufficient weight to the
successful performance of Mr. Ford as an SO3 at the TSB, which experience was said to be relevant in depth and directly applicable to the position that was the subject of the grievance.
The Minutes of Settlement, in paragraph 4, were said to represent an acknowledgement that Mr. Ford was "qualified to be interviewed for the position and the position itself amounts to
merely a lateral transfer. (vii) Ms. Anklesaria was said ,to be predisposed in favour of Mr. Thomas and was either biased against or unable to objectively assess the Grievor's qualifications.
(vii) "The panel was essentially lead by Ms. Anklesaria and engaged in consensus scoring given the technical nature of the questions which precluded independent decisionmaking. '' (viii)
The Board was asked to draw a negative inference from: (a) The failure of the Employer to call as a witness Mr. Stephen Tremblay, identified as a
15 representative of the Human Resources Department, to' explain the confusion with respect to the position specification and why the rerun was considered a "new position" in Exhibit
34. (b) The failure of the Employer to call Mr. Thomas as a witness to give evidence to assist the Board in evaluating or comparing relative equality, or skill ability and suitability
for the position and to answer allegations that he had an unfair advantage over Mr. Ford. (C) "[T]he failure of the Employer to call one of the members of the panel (Linton) who was
not called to give evidence although the three other members of the panel did give evidence". In the circumstances, we were asked to appoint Mr. Ford to the position of SO3 in the SSD.
It was submitted that: "Despite the flaws in the competition the Board can be satisfied that Ford possesses the skills, suitability and ability to perform the duties of the vacancy and
any results that were a poor reflection on his ability and qualifications can be discounted by the existence of these flaws." It was also submitted that if "the Employer [had] given
proper consideration to relevant questions and information, Ford would have been found to be at least relatively equal to the
16 incumbent and would have been awarded the position by virtue of his seniority. Under the circumstances of this case the Board should not order a' rerun of the competition and the
Board has sufficient information before it to make an objective assessment of Ford's credentials and grant him the position." 2 Summary of Evidence of Witnesses From the Perspective
of the Union (1) Evidence of Mr. Ford (a) At the time of his being interviewed for the position, Mr. Ford-was employed as a Senior Programmer/Analyst (SO3) in the TSB, and had occupied
that position for about a year prior. He had, since being employed by the Ministry in 1979, been an SO1 and an SO2. He referred to his resume (Exhibit 13) which indicated a broad background
in computer programming, including experience in INGRES, All-In-One and many other forms of software. ( b ) He referred to Brian Brockington as his superior when he worked for the 18
month period as an SO2 in the SSD on the YOA project, and agreed with performance appraisals that stated that he "communicated well with end users." It was his position that he designed
almost 90% of the application software for the YOA project "as of the time he left the Project." (Emphasis of counsel for the Union. )
17 (c) He testified that he recalled the Employer insisting that Ms. Anklesaria not have an alternate on the Board, as a condition to its executing the Minutes of Settlement (Exhibit
5 ) . He understood that M s . Ancevich was a member of the panel because of her experience in Employment Equity and he believed that she would assist in ensuring that a fair competition
would be run. (d) He complained about the Employer's failure to afford him an opportunity to participate in the All-In-One programming course advertised by an interoffice memorandum
dated March 7 , 1990 and circulated only to persons in the SSD Branch (Exhibit 1 0 ) . (e) -He was working with INGRES and DEC VAX (office automation software), and members of the SSD
Branch were aware of this and should have included him in the circulation of the memo (Exhibit 1 0 ) . (f) Exhibits 8 and 9 were described by Mr. Ford as examples of his inability to
gain access to the All-In-One program and of h i s attempt to search All-In-One files and being denied access. (g) He criticized-the relevancy or content of questions asked on the interview,
as follows: (i) Question No. 4 . He felt that he had the same DEC VAX experience as everybody else. He questioned whether the Employer was including Mr. Thomas' community college experience
as work experience.
18 (ii) The phrase "row by row" may be used by a certain group of co-workers but was not a term that he was familiar with despite his experience. These questions were more appropriate
for a systems manager. (QuestionN os. 5 , 6, 7, 8 and 11.) (iii) Question No.13: Only INGRES was used on the job, the other types listed were not used. (iv) Question No.18. The question
is not really related to INGRES. (h) He described how, in his work as an S 0 3 , he designs, develops, tests and implements new software systems and procedures and develops and works
on applications of programs. (i) He testified as to his being denied an interview for the position of SO3 in the SSD in 1989, filing a grievance, and how he was, granted an interivew
at step 2 of the grievance procedure. Ms. DiMitri was the successful candidate and Mr. Ford then grieved the denial of his appointment to that position. The position was then posted
as Ms. DiMitri had resigned and Mr. Ford, again, was not granted an interview. Mr. Fortier, who later resigned from the position, was the successful candidate. Mr. Ford grieved his being
denied an interview and this is what led to the Memorandum of Settlement (Exhibit 5 ) being executed on the day the case was to commence. ( 2 ) Evidence of Vera Anklesaria (a) It was
submitted that Ms. Anklesaria had some difficulty in separating the evidence with respect to this hearing from other
19 hearings involving Mr. Ford in which she had been involved and relied, almost exclusively, on the documents that were placed before her. Evidence relied upon by the Union, at pp.
13-13 of its written statement, arising out of her examination-in-chief is as follows: (i) She did not write down all of the answers to the questions that were put to the candidates
d u r i n g the interview. ii) The answer sheet that the interview panel w a s provided did not contain all of the acceptable answers to a particular questions. (iii) She could not remember
whether she looked at parts of the personnel file of Mr.Ford which which pre-dated the job competition by more than five years. The personnel file of Mr. Ford was admitted to contain
job evaluations and appraisals which were more than five years old. She gave a glowing summary of the qualifications of Mr. Thomas and described his qualifications as excellent while
describing Mr. Ford's qualifications as being average. It was said to be significant that Ms. Anklesaria did not say that Mr. Ford was not
20 qualified to perform the duties and responsibilities of the position in question. (iv) Ms. Anklesaria alone obtained the references provided by Mr. Thomas and Mr. Ford and attempted
to consider their respective work experience. (V) Ms. Anklesaria characterized work experience gained in the TSB as, generally, not being as good as experience in the SSD for the purpose
of a persons's being considered for the posted position. (b) There were a number of portions of Ms. Anklesaria's crossexamination, that proceeded on February 24, 1 9 9 2 , that were
relied upon by counsel for the Union in his written submissions, at pp.14 20: (i) She did not know of or apply any written guidelines with respect to her review of performance appraisals
made more than three years prior to the interview. (ii) She was unable to identify and extract from the Procedures and Guidelines Manual published by the Ministry a statement which provides
that records of performance appraisals be kept for only a specified
2 1 time period and then discarded in order to provide a new window of opportunity for any employee. She also denied knowledge of any unwritten policy with respect to retention of performance
appraisals or their review during a job competition, although she stated that the Human Resources Branch would normally advise the Employer to look only at the most recent ones. At the
same time, Ms. Anklesaria did not have in mind any specific time period beyond which she ought not to review performance appraisals when she investigated Mr. Ford's personnel file. (iii)
She was unable to advise whether performance appraisals dating back to 1982, which were put to her by her own counsel but not identified by her, were in the personnel file. (c) Ms. Whetstone,
an SO4 in the SSD Branch who supervised Mr. Thomas was named as a reference him and gave him a glowing reference. Ms. Anklesaria was aware, at the time she obtained the reference, that
Mr. Ford w a s grieving the promotion of M s . Whetstone to SO4 and did not communicate this fact to the other members of the interview panel for their consideration or permit them to
weigh the Whetstone grievance in light of this information,
22 and there was no evidence that she sought the advice of Ms. Ancevich on this matter. (d) Letters between the parties do not include references to all the reasons why Ms. Anklesaria
requested that she be removed from the panel. They do not confirm that Mr. Ford was advised of t h e close working relationship between Ms. Anklesaria and Mr. Thomas. They do not confirm
Ms. Anklesaria's disagreement over the manner in which the makeup of the panel was arrived at. This fact was not. disclosed to Mr. Ford or to Mr. Ford's counsel when Mr. Ford agreed
to the Minutes of Settlement and to Ms. Anklesaria sitting on the interview panel without an alternate. (e) The other reference for Mr. Thomas was Ms. Donna Ingrahm and her reference
was based on experience with Mr. Thomas that was over three years old. The reference was said not to be particularly helpful to Ms. Anklesaria. ( f ) The final reference glven by Mr.
Thomas was Ms. Anklesaria, who advised Mr. Thomas that she would not be providing a reference for him; ( g ) Communication between Mr. Thomas and Ms. Anklesaria on other than work related
matters ceased when she became aware that he had applied for the posted position, and she made a conscious decision
23 not to discuss anything that would give him an advantage after that point (but not before). (h) Written copies of the references obtained by Ms. Anklesaria, together with written
copies of the performance appraisals, were not sent to other members of the interview panel, who were merely given verbal summaries by her. (i) The SO4 vacancy was posted prior to the
posting of the instant. vacancy despite the Minutes of Settlement which required that the instant vacancy be posted in or about March of 1990. ( j ) A further reason -for the competitions
being delayed was t h e fact that Ms. Anklesaria had gone on vacation. (k) Other persons from the SSD who could have sat on the panel in place of Ms. Anklesaria were Messrs Brockington,
Hakim, David Court-Hampton, or James White. (1) No attempt was made to ensure that candidates were not answering questions based on information acquired after March of 1990. (m) Some
of the questions were drawn from manuals that were retained by Ms. Anklesaria which she derived from seminars or courses.
24 (n) Ms. Anklesaria was said to have been influenced by the fiveday seminar on All-In-One attended by Mr. Thomas as she stated that at the briefing for the September 1990 interview,
or prior to it, she advised Mr. Ford that she had changed the questions from the previous competitions that he had been on. ( 0 1 Ms. Anklesaria should have increased the percentage
of points that were allotted to the oral presentation and reduced the points allotted to the technical answers on the interview to better reflect the emphasis that she was now placing
on the need to interact with end users. She agreed, for example, that 40% of the score for technical questions and the balance for oral communications skills might have better reflected
the emphasis that she was placing on the need to interact with end users and the need for oral skills. She testified, during re-examination, however, that this would have made no difference
to her recommendation that Mr. Thomas be awarded the position. [Ms. Wong disagreed that communication skills should have been given special emphasis.] The evidence of M s . Anklesaria,
on re-examination, that it would have made no difference lacks weight and emphasises the need to hear from all of the members of the panel including Ms. Linton. As well, M s . Anklesaria
cannot know that it would not have m a d e a difference in the result since the actual content of the questions or the format may have to be changed to better reflect an emphasis on
communication skills. She also cannot know how the other members of the panel would have scored the candidates had there
25 been a different emphasis or weight given to oral communication skills. There was also a disagreement between Ms. Wong and Ms. Ancevich as to the significance of communication skills
or the need to interact with end users. ( p ) The questions could be correctly answered in more than one way. That is, there were correct answers different from the examples given to
the panel members. (q) Specific marks were not allotted to specific parts of an answer, Most of the answers were said to have been allotted points based on subjective assessments. (
3 ) Evidence of Ms. Wong (a) Ms. Wong's evidence was said to have been so general and so focused on the fact that she and Ms. Anklesaria endeavoured to act fairly that it could not be
"particularly helpful to the Board in assisting the Employer." (b) Reference was made to Ms. Wong's evidence, in crossexamination, where she admitted that she could not remember whether
she had looked at the personnel file of Mr. Ford and that she relied on Ms. Anklesaria to tell her what the performance appraisals and references revealed.
26 (c) She disagreed that, as a general statement, work experience in the TSB was not as valuable as experience in the SSD Branch for persons applying for SO3 positions in the SSD. (d)
She was unaware of who presently occupied the vacancy and could not recall the position specification for SO3 in the SSD or a draft position specification in the SSD being given to any
candidate. (e) She could not explain why the management requirement summary (Exhibit 3 4 ) listed the vacancy as "new position." (f) She had not been told by Ms. Anklesaria that she
and Mr. Thomas were part of the same car pool, off and on, from 1988. (g) Since All-In-One was introduced to the Ministry, about 1985, there was a growing realization for the need for
knowledge and training in that system. (h) The person filling the SO3 vacancy in SSD would have to bo proficient in All-In-One, and be more proficient more quickly than employess in
the rest of the Ministry. (1) She had worked in TSB prior to the interview. All the projects in TSB are mainframe based versus DEC VAS in the SSD
27 Branch The service skills on DEC VAX and INGRES databases are different from mainframe and COBOL. ( j ) If Ms. Whetstone had written a poor reference about Mr. Thomas, she might have
raised Mr. Ford's standing. (k) She was unaware that Mr. Ford was grieving the appointment of Ms. Whetstone as an S04. That represented information that would cause her to view the reference
"with a grain of salt" or would affect the weight she gave to it. (1) References were checked by Ms. Anklesaria who suggested that she check the references for the other members of the
panel. She met with Ms. Anklesaria personally because of scheduling problems and she recalled that Mr. Thomas had very good references and that Mr. Ford had good to fair references.
(m) She could not recall that the position had been eliminated as a result of lack of funding. (n) She could not recall Ms. Anklesaria telling her that she had informed Mr. Thomas that
he could not communicate with her about the job competition. (0) Prior to the lunch break at the hearing, Ms. Wong testified that there had been discussions about attempting to ensure
that
28 candidates would not be able to use information, experience or knowledge acquired after a certain time period when answering the questions and she stated that she had considered all
of Mr. Thomas' experience as set out in Exhibit 2 3 , including the SSD experience, and regarded the SSD experience as "perhaps being more relevant than others up to the time of the
interview." It was only later that she stated that she interpreted the words "January 87 present" to mean "January 87 to Present (minus a time period)." ( p ) She could not recall how
many points, if any, she had deducted from Mr. Thomas' overall score on the interview, and she also could not remember how may, if any, points she had deducted from Mr. Ford's score
on the interview. She did not know how many points the other panel members deducted, but believed that they also applied the same rule. She believed that she would have initially decided
on a certain number of points to award' for an answer and then deducted some points to account for experience in the area of the question obtained during a certain time period. She did
not know how many points, if any, other members of the panel deducted. (q) She acknowledged that there was no objective standard for her to use in common with other members of the interview
panel to ensure that she was deducting the same number of points as they were when considering a particular candidate.
29 (r) She applied the same approach to the scoring of both written answers and oral presentations. ( s ) She acknowledged that the rule she applied affected the total percentage of
scores as identified in Exhibit 3 2 , and that the percentage scores of each candidate resulted from point al locations which were made by her after she deducted points to apply this
rule. This was regarded as an acknowledgement by her that she could not tell how the relative rankings between the candidates would have been affected had the rule not been applied.
(t) Her description of the parameters of the rule was said to be arbitrary in that she said it was not applicable if experience and skill was not specific, if the candidate did not have
experience except in that period. She did not believe that this rule would have any significant impact on a candidate with a number of years of experience. (u) Contrary to Ms. Anklesaria's
evidence, she did not agree that communication skills or ability to communicate with end users was given any more significance than any other quality or qual if ication. (V) She acknowledged
that questions 3 , 4, 5 , 8, and 19 (Exhibit 1 6 ) "could be part of questions that could be asked of Systems Managers.
30 (w) She d i d not b e l i e v e t h e r e w a s a n y t h i n g improper or unusual about a c a n d i d a t e s u b m i t t i n g t h e name of a m e m b e r of t h e p a n e l as
a r e f e r e n c e . T h i s w a s c o n t r a s t e d w i t h t h e e v i d e n c e of M s . Ancevich who s a i d t h a t she w a s " u n c o m f o r t a b l e " w i t h t h i s s
u g g e s t i o n . ( x ) Although she f e l t t h a t it w a s unusual f o r a person w i t h M r . F o r d ' s background t o s c o r e as p o o r l y as he did on an SO3 vacancy i
n t h e SSD, given t h e t i m e t h a t he had s p e n t as an SO3 i n t h e TSB, she made no f u r t h e r i n q u i r i e s as t o why t h i s w a s t h e case. ( y ) I n r e -e x
a m i n a t i o n , M s . Wong stated t h a t s h e had sat on o t h e r p a n e l s where M r . Ford w a s a c a n d i d a t e ( t h e Cheung c o m p e t i t i o n ) . She r e c a l
l e d t h a t t h e r e were t i m e r e s t r i c t i o n s on t h a t c o m p e t i t i o n and r e s t r i c t i o n s on t h e c o n s i d e r a t i o n of e x p e r i e n c e a
c q u i r e d a f t e r a c e r t a i n d a t e . She recalled t h a t i n t h e Cheung g r i e v a n c e t h e r e w a s a r u l e r e g a r d i n g d i s c o u n t i n g c e r t a
i n e x p e r i e n c e and s h e was, when she gave h e r e v i d e n c e , u n s u r e as t o which c o m p e t i t i o n w a s s u b j e c t t o t h i s r u l e : Cheung or t h e
one w e are concerned w i t h . ( z ) F u r t h e r i n r e -e x a m i n a t i o n , c o u n s e l f o r t h e Employer w a s s a i d t o have "undermined t h e c r e d i b i l i t y
of h i s own w i t n e s s by s u g g e s t i n g t o [ M s . Wong t h a t s h e may be c o n f u s i n g her e v i d e n c e . " I t w a s s u g g e s t e d i n t h e Union's w r i
t t e n argument t h a t i f M s . Wong's e v i d e n c e w a s accepted, t h e job c o m p e t i t i o n w a s f a t a l l y flawed. I f her e v i d e n c e w a s not accepted, t h
e n t h e Board w a s s a i d t o be i n a p o s i t i o n where it could not f i n d t h a t t h e Employer had s u c c e s s f u l l y
31 rebutted the evidentiary onus that was placed upon it to establish that the panel acted fairly and in accordance with the Minutes of Settlement. If the Employer chose not to call
evidence in addition to that of Ms. Anklesaria concerning the fairness of the panel or to rebut allegations of bias a "finding that one member of the panel lacked credibility or was
unreliable with respect to significant portions of her evidence is fatal to the Employer's case and at least should put the Board on an inquiry as to why Linton was not called." ( 3
) Evidence of M r . Brockington Mr. Brockington gave evidence, in chief, about Mr. Ford's having joined the YOA project as an SO2 just after the requirements definition phase had been
completed and stated further that: (a) M r . Ford had not created the entire application software design and did not design 100% of it. Part of the deslgn was completed after Mr. Ford
left the SSD Branch. Mr. Ford had designed the sections that he developed and by the time he left the project about one third of the portion in place had been designed by him. (b) There
were angry letters or words exchanged between Mr. Ford and some of his co-workers and between Mr. Ford and Mr.
32 Brockington during the period Mr. Ford was on his secondment, to the SSD Branch. (c) In cross-examination, Mr. Brockington acknowledged that Mr. Ford might have designed all of the
screens shown in Exhibit 3 5 . He also acknowledged that Mr. Ford designed a substantial part of the application software "as at the time Ford left the project (Emphasis by counsel for
the Union) ( d ) In early 1988, Mr. Brockington was sufficiently satisfied with Mr. Ford's performance to give him "good or fair performance appraisals including 'interacted well with
end users'." ( e ) Mr. Ford expressed his concern on a regular basis about 'his status in the SSD Branch, as he wished to secure a permanent position there. The first two six-month periods
that Mr. Ford spent in the SSD Branch represented a temporary assignment as an SO2. The final period was not as a result of the formal extension of the secondment. During this final
period, Mr. Ford grieved that he was improperly classified as an S02, which grievance was denied in or about April of 1990 by Mr. Court-Hampton. (f) Mr. Ford grieved, in or about April
of 1988, that he had not paid acting pay as required by the collective agreement and this grievance was denied by Mr. Court-Hampton.
33 (g) Mr. Ford grieved, in or about April of 1988, that he had been unfairly denied the posting of the position in which he was at that time employed, which was denied by Mr. Court-Hampton.
(h) Mr. Court-Hampton caused a written record of verbal reprimand to be placed in Mr. Ford's file in or about May of 1988, which action was grieved, and the matter was settled with the
removal of the notation. (1) Mr. Ford was given a written memorandum, in or about June of 1988, by Mr. Brockington, which was copied to Mr. Court-Hampton, recording a complaint that
Mr. Ford was taking too much time out of the working day to talk to people in the course of preparing his grievances. ( j 'Mr. Brockington agreed that everything "went sour and went
downhill after Ford began working there." (k) Mr. Court-Hampton wished to remain at arm's length from the competition, however when Mr. Brockington wrote up minutes of settlement in
the "Cheung" grievance brought by Mr. Ford, dated January 1 0 , 1990, he attempted to call Mr. Court-Hampton in advance to obtain his approval with respect to those minutes (Mr. Court-Hampton
being the administrative head) as was the practice for all minutes of settlement including the other minutes of settlement affecting Mr. Ford.
34 ( 4 ) Evidence of Ms. Ancevich (a) Ms. Ancevich was an Employment Equity Manager at the H u m a n Resources Branch at the Ministry of Community and Social Services. She holds a Master's
degree in psychology, had previously been a consultant to the Ministry, and prior to that time had experience in the field of employment equity. She had no training or experience with
computers. (b) She required assistance or advice in scoring prior to the interviews. (c) She did not add or subtract any points for recent experience acquired by Messrs. Thomas or Ford.
( d ) In cross-examination she stated that she had never sat on a panel involving such technical questions in an area where she had no technical expertise. (e) She was not instructed
to deduct points for answers based on experience acquired after March of 1990. She testified that her lack of knowledge that experience had to be discounted would reult in an unfair
competition, as it would have prevented her f r o m putting all the candidates on an equal footing. This, it was submitted by counsel for the Union, would "impugn the method of scoring
adopted by Wong."
35 (f) Ms. Ancevich acknowledged that it would be unusual for a member of the interview panel to be named as a reference by one of the candidates and that this could be "possibly in
bad taste" or indicate a "conflict of interest." Counsel for the Union, in his written submission (at p.36) stated: "She explained her concern of conflict of interest by saying that
it would be unfair to the other candidates because one of the members would have special knowledge of or perhaps like or favour the person who had given the reference because the panel
member had worked with that person. She admitted that Anklesaria did not tell her that she had taken steps to ensure that she did not consider her own personal knowledge of Thomas' expertise
and experience when describing Thomas' references." ( g ) Ms. Ancevich did not know that Mr. Ford was grieving the SO4 position that Ms.. Whetstone had been appointed to. (h) Based on
her knowledge of Government of Ontario practices or suggestions, performance appraisals were confidential between an employee and his/her supervisor and should not be reviewed for competitions
by panel members. Ms. Ancevich advised that she had taken courses on performance appraisals and her testimony represented her understanding of the practice or suggestions as to the use
that should be made of performance appraisals. She had not, reviewed Mr. Ford's performance appraisals nor did she recall Ms. Anklesaria discussing those appraisals.
36 (1) Ms. Ancevich did not know that M s . Anklesaria had been part of a car pool with Mr. Thomas. ( k ) In response to a question from the Vice-Chair she stated that she had not deducted
any points from the scores of the candidates for experience gained after March 1990 and felt that if she had done so it would have been improper. (1) She did not regard any particular
weight that had to be given to communication skills and she regarded the emphasis to he o n technical skills. Counsel for the Union regarded this to be in conflict with M s . Anklesaria's
evidence. 3. Position of the Union on the Law (a) Reference was made to Re Great Atlantic and Pacific Company of Canada Ltd. ( 1 9 7 9 ) , 21 L.A.C. (2d) 444 (Weatherill). The board,
there, noted that it was not restricted to determining whether or not the employer had acted honestly, not capriciously or whether or not its decision was the result of bias or bad faith
or unjust discrimination. The board (at p.447) went on to determine whether or not one employee was more qualified than another by a "substantial and demonstrable margin", and stated,
"We would agree with this, subject always to the qualification that the determination is to be made having regard to the particular job in question.
37 The board added: "we have indicated that in arriving at its decision in this case, the company did not act arbitrarily, nor did it seek to discriminate improperly against the grievor.
It was a bona fide decision. This Board must still determine, having regard to what we have said in the proceeding paragraphs, whether or not the qualifications and ability to perform
the work of grocery department head were "relatively equal" as between the grievor and Mr. Sawchuk. ( h ) Counsel for the Union submitted that there was evidence to show that the Employer
had acted capriciously as a result of bias or bad faith or unjust discrimination against employees in the T S B such as Mr. Ford. (c) Relying on the words: "having regard to the Particular
job i n question," counsel for the Union submitted that the Employer was unable to define the duties for the 'position or clarify what the vacancy was, and, as a result, the Employer
had not discharged the onus placed upon it. It was submitted that Mr. Ford: ... was quite capable of performing the duties of the DiMitri vacancy grieved and was effectively asking for
a lateral transfer. Once the Union has established a prima facie case of relative equality, the decision in Great Atlantic emphasizes the need for the Employer to show, even in the absence
of bias or capriciousness that it c a n clearly define the [duties associatied with] the vacancy and establish that Thomas was more qualified than Ford by "a substantial and demonstrable
margin." ( d ) The failure to comply with the terms of the Minutes of Settlement set out above was said to be significant in this case because it gave the incumbent the unfair advantage
which he otherwise would not have gained had the competition been posted in
38 March of 1990 as agreed. There was no attempt by Ms. Anklesaria to build in safeguards to ensure that no advantage flowed to Mr. Thomas as a result of the delay in posting the competition,
while at the same time, the evidence of the Employer's witness, Ms. Wong, was that she unilaterally attempted to deduct points from experience gained after a certain time period, which
itself was viewed as an arbitrary or unfair action by Ms. Ancevich. The failure to post the competition as agreed also permitted Mr. Thomas to attend at a substantive and lengthy five
day seminar on All-In-One prior to Ms. Anklesaria preparing the questions that were to be asked of the candidates during the interviews held in September. It was submitted that the breach
of the Minutes of Settlement and the failure to account for advantages that might flow to Mr. Thomas represent examples of capricious behaviour by the Employer which unjustly discriminated
against Mr. Ford. (e) The written argument of the Union emphasized the well-known requirement in competition cases that an employer demonstrate that it has examined all relevant evidence
reasonably available to it; that it has not considered irrelevant evidence, and if it has done so, that the receipt of such evidence did not influence the decision; that the Employer
has not behaved in bad faith. These requirements are set out in Re Great Atlantic and Pacific Co. of Canada Ltd. and Canadian Food and Allied Workers', Local 175 ( 1 9 7 6 ) , 13 L.A.C.
(2d) 211n, 76 CLLC, para.14, 056 referred to i n the first Great Atlantic and Pacific case above referred to. In
39 addition, the last mentioned A and P case requires that the Employer's decision be one that could reasonably be arrived at on the relevant evidence relied upon. (f) Counsel for the
Union referred to DeGrandis, 506/81 etc. (Samuels),w here the requirement that the candidates be evaluated on all the relevant qualifications for the job as set out in the position specification
is referred to at p . 2 5 . (g) At p.40 of its written submissions, the Union submitted that: "In the instant case despite repeated requests and opportunities, the Employer has been
unable to produce the draft specification alleged by Anklesaria to have been given to Ford as an example of communicating the relevant qualifications for the job or as a tool by which
the Board may assess where the relevant qualifications were the subject of the evaluation." (h) Another flaw, in addition to those above referred to and relied upon by counsel for the
Union, was said to be the failure of the applicants' supervisors to be asked for their evaluations of the applicants. (i) It was stated that the evidence indicated that: " M r . Ford
w a s subjected to a 'particularly rigorous review and sentencing that Mr. Thomas was exempted from,'" and reference was made to the following:
4 0 i. His past grievances were well-known and indeed Anklesaria was involved in other job competitions involving Ford. ii. It is likely that Anklesaria reviewed performance appraisals
of Ford more than five years prior to the interview. iii. Although performance appraisals of Ford as an SO2 in the SSD were admitted to be relevant and good, they were clearly ignored
or given little weight. The importance of a clear understanding of the need for the Board to assess relatively equal qualifications and ability for the iob in question is found the requirement
that Article 4.3 of the Collective Agreement. This requires that the qualifications and ability "to perform the required duties." [Reference to the Bullen case (Samuels) (GSB case number
not shown) found at Tab 3 of the Union's Book of Authorities.] (Emphasis in Union's written submissions) Emp l oyer give primary consideration t. o (j) -Counsel noted that in Bullen
the position specification w a s not in dispute nor was there any doubt as to the nature of the vacancy being grieved. It was also suggested that the Employer, in the case before us,
had not relied on the evidence of Mr. Thomas. According to the Union's submission, the only evidence opposed to the view that Mr. Ford was either better qualified for the vacancy or
relatively equal to Mr. Thomas was Ms. Anklesaria's feeling that Mr. Thomas had better communication skills. We were asked to find that his scoring on the oral interview was "explained
by the unfair advantage [Mr. Thomas] gained in attending the All-In-One seminar and remaining in the position which was being grieved after March of 1990 and the scoring being influenced
by Ms. Anklesaria's overemphasis on communication skills and under-emphasis on technical knowledge about the vacancy." The Board was asked "to look at the
41 relative ranking of the other candidates to draw the inference that the questioning was too difficult, or that Thomas must have gained an unfair advantage, i.e. apart from Thomas
only Ford scored a passing mark of 58% (see Exhibit 32." (k) The fact that Mr. Thomas had a higher general education or other achievements was said to be irrelevant except where those
factors bore on the job in question. (See p.11 of Bullen). Reference was made to Marek, 414/83 (Samuels), and Mountain et al 6 2 6 /8 3 etc. (Fisher), as examples of the importance of
the Board being able to determine the duties with respect to which it was being asked to assess relative equality. (1) In Marek it was found that the grievor did not have an opportunity
to see the position specification until sometime during the grievance procedure, and therefore was unable to specifically address with the panel the details of the job in question and
her fitness to perform it. It was found that the grievor had not been given a suitable opportunity to add to her own comments to tho questions and answers put to her. It was submitted
that in the case before us: "There is an even more significant dispute in that the grievor was never given a draft position specification. This evidence was never put to the grievor
in cross-examination, and the employer has been unable to lead evidence to substantiate i t s assertion that the grievor could identify the nature of the duties
42 by virtue of the draft position specification that was given to him prior to the interview." (m) In Mountain, the failure to furnish the grievor with a copy of the position specification
was addressed at pp.1-2, and the Board found: "For some reason not fully explained to the board these grievors were only given copies of the job description minutes before they went
into the interview." Counsel for the Union argued that there was significance in the fact that although Ms. Anklesaria testified that the Grievor had been given copies, this was not
substantiated by the evidence of Mr. Thomas, who w a s not called as a witness but could have been called to support this assertion. It was also argued that the Employer had not introduced
"the alleged position specification into evidence." We were asked to find significance in this fact because "the Minutes of Settlement establish that Ford was supposed to be competing
for the DiMitri vacancy but on the evidence of Anklesaria the DiMitri vacancy either no longer existed, or it was not in the minds of the interview panel when it devised the questions
to evaluate the candidates. This was distinguished from Mountain et al where t h e Board found that all three grievors had an opportunity to speak to the person occupying the position
that was the subject of the competition, whereas, in the case before us no such opportunity was furnished to the Grievor, nor was he given the opportunity to use the job specification
as a guideline for preparing f o r the interview.
43 (n) Counsel referred to Rankin, 1 1 4 5 /8 6 Brandt). At p.36 of tha t case, the Board stated: ..However, we believe that so ne care must be taken to ensure that, in designing a test,
the weighting a s s i g n e d to particular parts of the test bear a reasonably close relationship to the duties to be performed, both in terms of the difficulty of those duties and
the frequency with which they have to be performed. A testing procedure which over emphasized infrequently performed and uncomplicated duties would not provide the Ministry with the
kind of information which would permit it t o make the sort of informed judgement that it is required to make in these cases. (o) The Union did not argue that communication skills were
"equally relevant" to the duties required to be performed, but. submitted that the Employer had erred in attempting to give significance to this factor as testified to by the' Employer's
witnesses. It was submitted that M s . Anklesaria, when she assessed Mr. Ford's answers to technical questions put to him on the oral interview and his oral presentation and his written
answer to a question, gave "significant weight in her scoring to the 'communication skills' aspect or 'ability to interact well with end users' aspect of the duties." Counsel for the
Union also relied on Ms. Anklesaria's evidence that the S 0 3 , in the position before us, was not the only person in the group who dealt with end users, and was not the leader of the
group nor the senior member. It was suggested that the ability to deal with end users represented only a small part of the duties of the S 0 3 . We were asked to find t h a t Mr. Ford's
performance appraisals as an SO2 in the SSD Branch were
44 relevant and reliable measures of his having dealt properly with end users. (p) The questions were said to be excessively technical and to have focused on "trivialities or colloquialisms"
which would have been more properly put to a Systems Manager. It w a s once a g a i n submitted that where the Employer could not clearly enunciate the duties of the vacancy, it could
not rebut the inference that there was improper weighting of certain parts of the competition and that consideration was given to "irrelevant" skills or abilities." (q) It was submitted
that the selection process was defective because the members of the selection panel could not establish that they had independently scored the competition. Reference w a s made to Eddie,
766/88 (Devlin) and Grant, 1396/90 (Barrett), where the Board addressed the need for the employer to respond to evidence that a method of scoring precluded independent decision-making
on the part of the panel members,. as this created the potential for one member of the panel to dominate the others. We were a s k e d to find that Ms. Anklesaria dominated both the
selection of the questions to be asked and the correctness of the answers as w e l l as the scores to be assigned. Ms. Anklesaria w a s said to have also dominated the weighting of the
oral interview, slide presentation, and written answer. We were asked to find that Ms. Ancevich relied entirely on the material provided to her by Ms. Anklesaria. Ms. Anklesaria also
carried out all of the post-interview gathering of
information, including the review of performance appraisals and references. There was also said to be evidence that: (1) some of the questions could be answered in ways not provided
for in the answer guide provided to members of the panel, and ( 2 ) the answer guide furnished to the members of the panel did not provide them with assistance in determining what portion
of the 10 points for each questions could be allotted for a partially correct answer, and ( 3 ) the members of the panel nevertheless identified scores that were remarkably similar to
Anklesaria's for each of the questions asked on the oral interview (see Tabs 17 through to 20 for score sheets of each panel member re: Ford). (r) Reference was made to Eadie, at p.14,
where the Board found that there had been a lack of independence which resulted in the selection process being flawed. In Eadie there was no dispute that the grievor was qualified to
perform the duties of the position. ( s ) Reference was made to McIntyre, 141/85 (Knopf) where there were two aspects to the competition that concerned the Board. The first was that
the selection panel consisted of a person who at the time had worked with the successful candidate for a number of years, the successful candidate having been his personal secretary,
With whom he had a close professional relationship. The Board noted that it was not implying that a candidate's supervisor ought never to be part of a competition panel with respect
to that employee. They also noted at pp.8-9: ... but, one of the reasons for having a selection panel is to offset the natural and understandable predisposition of one interviewer who
may be familiar with some candidates with more objective impressions gained by outsiders. In the case at hand, the questions
and answers presented to the candidates called for judgement that had to be marked on a impressionistic basis. Thus, there was inevitably a high degree of subjectivity in the marking
that is both appropriate and unavoidable. Mr. Gadde's presence on the p a n e l together with only one other interviewer, could create a legitimate concern over the ability of the selection
committee to come up with an objective conclusion. (t) Counsel for the Union submitted that in the case before us the fact that there were three other members of the panel besides M
s . Anklesaria was outweighed by the fact that the interview panel relied on M s . Anklesaria for an interpretation of the references of M r . Thomas and she was looked to for leadership
in devising the questions for the test, preparing the score sheet, and conducting the post competition investigation. It was again emphasized that at the time the Minutes of Settlement
were executed, the Employer had insisted that Ms. Anklesaria be on the panel and not have an alternate. In the circumstances, Mr. Ford could not know that Mr. Thomas had a close professional
relationship with Ms. Anklesaria including the fact that Mr. Thomas would give Ms. Anklesaria as a reference or that Ms. 'Anklesaria and Mr. Thomas had been part o f the same car pool.
It was emphasized that Mr. Thomas had gained an advantage from working in what counsel f o r the Union regarded to be the very position being the subject of the grievance while reporting
to M s . Anklesaria. Ms. Anklesaria's evidence indicated that s h e was very impressed with Mr. Thomas' performance. We were also asked to find that there was a high degree of subjectivity
in allotting scores on the slide presentation, written answer and oral
47 interview because M s . Anklesaria was emphasizing communicat ion skills and the ability to communicate with end users. (u) Reference was made to Katsuno et al, 2503/90 (Watters),
where the Union alleged that bias. had been exhibited in favour of the incumbent and relied on the cumulative effect of all of the evidence presented. At p . 8 , the Board stated the
standard applied by it: The Board was asked to objectively assess such evidence and to conclude that the credibility of the competition had been destroyed in the mind of any reasonable
employee. (v) The Board in Katsuno did not find that a social relationship between the incumbent and the interview panel compromised the integrity of the competition but noted that such
social relationships were undesirable given the relatively small size of the work unit. Counsel for the Union noted that Ms. Anklesaria had testified that there were other persons who
could have sat on the interview panel in her place and she noted her concern about her prior relationship with Mr. Thomas and specifically asked that he not discuss the competition with
her until it was completed. Mr. Ford was unaware of this relationship and had not been furnished with the reason for M s . Anklesaria's wish to have herself removed as the chair of the
panel, nor did she consider that other members of the panel might wish to weigh the reference given by Ms. Whetstone in a different manner if they were aware that Yr. Ford was grieving
her appointment as an S04.
(w) Reference was also made to Esmail, 1186/37 (Dissanayake), where the Board, at p.13, appeared "to have approached t h e interview as the judging of a 'performance' not as a means
of ascertaining the candidates' ability and knowledge." ( x ) In dealing with the interview panel's insistence on communication skills, the Board stated, at p.15: The Board does recognize
that the vacancy requires good communication skills. But so does the assessor and clerk job which the grievor had performed without complaint f o r years. The evidence is that she had
good performance appraisals and there is no indication of any problems in communication. Even if the grievor was less than perfectly articulate during her interview, that is not a determinative
indication of a lack of communication skills. The panel had much more reliable evidence in the employee files and appraisals if the grievor had any problems communicating effectively.
It is not appropriate to judge an employee's communication (or for that matter any other) skills based solely on a performance at a brief interview, with much more reliable evidence
is readily available elsewhere. (y) It was argued that in that case it was found (at pp. 11-12) that there was a reasonable apprehension of bias created by the members of the panel being
under pressure to select employees who had received certain training referred to as OASYS. The Board noted that as long as OASYS training and experience was given any significant weight
the result .of the competition would be a foregone conclusion in the eyes of a reasonable person. That is, successful applicants would be those who had the OASYS training and experience.
In the case before us, it was submitted that there was an apprehension of "bias" in that Thomas, as a member of t h e SSD Branch, was given an opportunity to attend a detailed seminar
on
49 All-In-One, which opportunity was said to be .unavailable to Mr. Ford. ( z Reference was made to Wigmore on Evidence, 3d Ed., Vol II pp.162: the failure to bring before the Tribunal
some circumstance, document or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference,
that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed f a c t s unfavourable to the party. These
inferences, to be sure, cannot fairly be made except upon certain conditions; they are also open always to explanation by circumstances which makes some other hypothesis a more natural
one than the party's fear of exposure. But the propriety of s u c h an inference in general is not doubted. (aa) Counsel for the Union also relied on a quotation from p.537 of a work
included at Tab 14 in its Book of Authorities. The work is not identified, but it is Sopinka and Lederrman Evidence in C i v i l Cases, 1st Ed. (Butterworth's). The quotation is: the
rule is not restricted in its application to t h e plaintiff or other party who has the ultimate burden of proof. Failure on the part of a defendant to testify or call a witness, once
a prima facie case has been made out against a defendant, may be the subject of an adverse inference. While such failure will not, in itself, fill a gap in the case of the party who
has the burden of proof, when sufficient evidence has been produced by the latter, so as to create a secondary burden on the opposite party, failure by such party to testify or to call
on a witness strengthens the case against, him. It was submitted that no explanation had been offered by t h e oyer for its failure to call Mr. Thomas, Ms. Linton or Mr.
i o Tremblay as witnesses. It was submitted that Mr. Thomas' evidence could have assisted the Board in determining whether there was bias or whether he had gained an unfair advantage
by virtue of h i s alleged social relationship with Ms. Anklesaria, and his attendance at the All-In-One seminar after the date when the posting was alleged to be required to be made.
It was argued that Mr. Thomas' evidence could have assisted the Board in weighing the relative communication skills of the Grievor in relation to himself, given the emphasis placed on
such skills by Ms. Anklesaria and counsel for the Employer. Mr. Thomas would also have been available for cross-examination with respect to the actual duties he performed, how they compared
to those called for by the questions that were asked and his present status: whether he remained as an incumbent at the time of the grievance. (cc) It was submitted that Ms. Linton ought
to have been called by the Employer to respond to allegations of unfairness or bias. Mr. Tremblay was said to be a person who could give evidence to clarify the evolution of the position
specification for the vacancy and, perhaps, to explain why the vacancy was listed as a "new position" although it arose out of the Minutes of Settlement involving the vacancy created
by Ms. DiMitri having left the position she had been appointed to. Although the Employer raised the allegation that a position specification had been given to Mr. Ford that would assist
him in understanding the duties of the vacancy, the Employer did not lead that evidence through Mr. Thomas, Ms. Anklesaria or
51 Mr. Tremblay or any other representative of the Human Resources Department. Ms. Anklesaria stated that a representative from the Human Resources Department would be required to explain
why Exhibit 34 referred to a "new position", however Employer's counsel did not call this evidence despite indications that he would do so. (dd) Repeated references were made to Mr.
Court-Hampton, identified by Ms. Anklesaria as the person who was responsible for placing her on the interview panel without an alternate. Mr. Court-Hampton was also identified by Mr.
Brockington as the person consulted by him with respect to the drafting of the Minutes of Settlement (Exhibit 5 ) . It was submitted that there was evidence that Mr. Ford became an undesirable
employee after Mr. Court-Hampton became concerned about the status of his position as an SO2 in the SSD Branch. It was also submitted that Mr. Court-Hampton could have responded to suggestions
that the Employer failed to comply with the Minutes of Settlement by not posting the position by March of 1990 because it wished to avoid having to accept Mr. Ford as an employee in
the SSD Branch. (ee) It was further submitted that the above-noted witnesses might have corroborated the evidence of Ms. Anklesaria and that they were in the best positipn to know the
facts being relied on by the Employer. Reference was made to the case of Moreau et al v. Devost et al; Montreuil v. Devost et al ( 1 9 7 0 ) , 17 D.L.R. ( 3 d ) 415 (N.B.
5 2 S.C. A . D . ) , where the Court stated, per Bridges, C.J.N.B., at p . 4 2 3 : The learned trial judge drew an unfavourable inference from the failure of Devost to c a l l Ruest
as a witness who he admitted was present when he said he refused his sister permission to take his station-wagon. It has been held in a number of cases that such an inference may be
drawn against a litigant failing to call as a witness a person who would have the knowledge of the facts and who might be expected to give important supporting evidence if the case of
a litigant were sound. e e It was submitted that where the Union had alleged bias and shown some evidence that the Employer had acted unfairly, the failure to call witnesses who have
special knowledge or could corroborate the evidence of M s . Anklesaria represented significant omission and entitled the Board to draw adverse inferences with respect to a number of
matters, and to make the following findings: (i) That the Employer did not give position specifications given to the candidates which reasonably described the duties of the vacancy.
(ii) The Employer did not hold a competition to evaluate t h e ability to perform the duties for the DiMitri vacancy but treated the position as a new vacancy. (iii) Mr. Thomas gained
an unfair advantage based on his familiarity with Ms. Anklesaria, their close professional relationship, and %he opportunity that remained available
53 to him to attend an All-In-One seminar as a result of the delay in posting the vacancy. (iv) Had members of the interview panel been told that M r . Ford was grieving Ms. Whetstone's
promotion, they may n o t have looked as favourably upon the reference given by her in favour. of Mr. Thomas. (V M s . Anklesaria was unable to independently assess M r . Thomas' skills,
ability and qualifications for the vacancy. 4 . Remedy The following submissions were made by counsel for the Union with respect, to the subject of the appropriate remedy, should the
grievance succeed. 1. Despite the fact that there were the numerous flaws in the competition listed by counsel for the Union, Mr. Ford scored only 19 percentage points less than Mr.
Thomas without there being any consideration of the impact the flaws might have on the ability of Mr. Ford to achieve a higher score.
54 2. Reference was made to Nixon (2418/87) (Fisher) where the Board found that the failure of a selection committee to properly consider the performance of the grievor in that case
during his incumbency, was sufficient to provide grounds for it to award t h e position to the grievor in that case. (At pp.3-4 and at p . 5 . ) In the case before us, we were asked
to find that the Employer had failed to adequately consider Mr. Ford's performance appraisals while acting as an SO2 on the YOA project for the SSD Branch, which was said to be the same
project that the person occupying t h e subject vacancy would have been required to work on. to find that Mr. Ford had the required qualifications and experience to perform the job of
an SO3 in the SSD Branch because of his work as an SO2 for that Branch, and the change in his We were asked classification to SO3 in the TSB. We were also asked to note that he was the
senior applicant. 3. Reference was made to Pool, 2508/87 (Samuels), where t h e Board, at p. 7 notwithstanding a finding that the selection process was entirely inadequate, found that
the grievor should have been awarded the position. 4. Reference was made to Clipperton 2554/87 (Watters), where the Board stated at p.17: After considering all the evidence adduced,
we are not satisfied that it is sufficient to allow us tu properly determine the relative status of the grievor and Ms. Zumac vis a vis their ability to perform the required duties of
the IMO position. While we think that they are both qualified and able to do the job in question, this,
in and of itself, does not lead to the situation of relative equality. In our view, we lack the necessary evidence to properly assess the abilities of Ms. Zumac. While testimony was
lead as to her past positions in the Ministry, we were not provided with any performance appraisal other than through Mr. Weibe's comment that such were "favourable". A s we have been
critical of the panel for acting in the absence of such information, we think it would be improper for the Board to determine the issue of relative equality without first reviewing and
assessing the performance appraisals and other relevant material within their respective personnel file care. As we have not had this opportunity, and in view of the significant flaws
in the competition, we believe that it is more appropriate to order a second competition be held. " 5 . It was submitted that in the case before us there had been an exhaustive review
of the history of employment of Mr. For&, the nature of his duties as an SO3 in the TSB, a demonstration, through performance appraisals of him when he was an SO2 in the SSD Branch as
part of the YOA project, that he possessed the specific skills and abilities required to fill the vacancy. It was submitted that to the extent that the Board had not heard evidence from
Mr. Thomas to assist it, this was prejudicial to Mr. Thomas and not to Mr. Ford, as this evidence was deliberately withheld by Thomas or the Employer. There were said to be no "factors
or considerations" that would justify ignoring Mr. Ford's greater seniority and that a decision to award the position to Mr. Ford was consistent with the reasoning in clipperton 6. Reference
was also made to Rankin 612/90 (Watters), where the Board, at p.14, awarded the position to the grievor, and noted:
The Board, for all the above reasons, awards the contested position to the grievor. A s this constitutes a lateral transfer, compensation is not in dispute. The Board recognizes that
this type of order is somewhat unusual. We elect to grant same, however, on the basis that the successful candidate has vacated the position, we also agree with the Union that a further
rerun would not be appropriate. 7. It was submitted that in the case before us the Board, as in the Rankin case, was faced with the choice of ordering a second rerun. In the case before
us, the Employer has had the opportunity, by virtue of the Minutes of Settlement, to rerun the competition by including the Grievor as one of the persons who would be granted an interview
which was the subject of the previous grievance. It was submitted that the Employer has demonstrated its inability to comply with the Minutes of Settlement, and it would be inappropriate
to order what would amount to a second rerun. 8. It was also submitted that there was no evidence that Mr. Thomas remained in the vacancy which was the subject of t h o original Minutes
of Settlement. Reference was made to Cover 3 9 7 /8 9 (Verity) as an example where the Board awarded the grievor the position after it found that there had been a lack of fair procedures
in the job competition, 'similar to the situation as exists in the case before us. 9. Reference was made to Smith, 1 0 5 1 /9 0 etc. (Kaplan), where t h e Board stated at pp.35-36: Having
found that the Peter's Corners competition was flawed, we must now turn our attention to an appropriate
57 remedy. The normal order in a case of this kind w o u l d be to direct the Employer to rerun the competition. Such an order does not, however, make any sense in the instant case because
the winner of the competition has moved on to another job and the Employer's witness agreed in evidence that the grievor, who was the only other applicant for the position, was qualified
for it. It would not make sense to rerun a competition for a single candidate in these circumstances. What makes sense is to award the grievor the Peter's Corner position. According,
we direct the Employer to offer the patrol foreman's position to Mr. Smith. 10. Counsel for the Union also relied on the fact that the grievance of Mr. Tratnyk, that was also before
us when the hearing began, has been settled and Mr. Tratnyk is no longer competing with Ford for the position. There is said to be no evidence that Mr. Thomas remains in the vacancy.
The Board has also not received the benefit of any submissions from Mr. Thomas as to why h e considers himself to be the superior applicant (as referred to at p. 35 of Smith). Furthermore,
if the Board finds that there is capriciousness, unfairness or bias in favour of Mr. Thomas or against Mr. Ford, then it would be a wholly inappropriate remedy to order a rerun. 11.
Counsel for the Union regarded it as undisputed that Mr. Ford was qualified to perform the duties and responsibilities of the position in question because of the agreement to grant him
an interview, as provided for in the Minutes of Settlement, and regarded it as a matter of agreement that the only issue was whether Mr. Ford was relatively equal to Mr. Thomas. It was
58 submitted that to order a rerun on the facts of this case would represent a hollow and ineffective remedy." 1 2 . A s an alternative position, the Union requested, should the Board
award a rerun, that the following terms and conditions be imposed: (i) There be a specified time period failing which t h e grievor should be awarded the position. (ii) The rerun should
be between Thomas and Ford only and upon failure of Thomas to compete, Ford should be awarded the position. (iii) Identify the vacancy and deliver a position specification that describes
the vacancy a n d is intended to form the basis of the competition. (iv) The panel should be made up of persons outside of the SSD. (V Neither Anklesaria nor Court-Hsmpton should have
any input into the makeup of the questions or selection of the panel. C. Employer's Argument in Response to the Various Criticisms of the Competition Made bv the Union in its Written
Submission and Commentary on the Evidence, From the Employer's Perspective 1. Late Posting of the Position It was submitted that the position had not been posted "in or about March 1990,"
as specified in the Memorandum of Settlement (Exhibit 5 ) because of a shortage of salary funds in the SSD
59 Branch. This was communicated to Union counsel on June 2 0 , 1990 (see Exhibit 3 9 ) . While acknowledging that the position had not. been posted within the time frame provided for
in the Memorandum of Settlement, counsel for the Employer excused this failure on the grounds that it could not be posted at the prescribed time for lack of funding. Counsel for the
Employer argued that there w a s no evidence of any improper motive for the delay and referred to t h e cross-examination of M s . Anklesaria who disagreed with submissions put to her
that the posting was delayed for an improper purpose: in order to shift employees between vacancies. Counsel noted that there was no other evidence given to establish the Union's theory.
he suggestion 2. -Effect of the Late Posting Counsel for the Employer rejected hat t h e delay in posting permitted Mr. Thomas to gain valuable experience in the SSD Branch and to take
the All-In-One course. It was h i s position that it was not uncommon, in any competition, to find one or more candidates in a competition have some experience in the job or department
for which they are competing and that it is inevitable that such candidates will have acquired some u s e f u l knowledge. Candidates are entitled to have their skill and ability evaluated
as they may exist from whatever source and that 'such qualifications and abilities cannot be rejected unless the Employer is acting in bad faith or in contravention of the collective
agreement: in conferring some particular advantage on a candidate
60 (see Desi/Bousquet, Slone GSB # 2 2 6 /8 9 ) . We were asked, i n t h e absence of evidence to show that the Employer had deliberately delayed the competition to give Mr. Thomas an
advantage, to find that the knowledge acquired by him between March 1990 and August 1990 did not taint the results of the competition. We were also asked to note, "that the advantage,
if any, which the delay gave to Mr. Thomas is a matter of pure speculation, since he was not working as an SO3 during the delay and there was no evidence of what applicable knowledge,
if any, he was acquiring as an SO2 during the five months in question. 3 . Influence on Scoring of Candidates (a) Counsel for the Employer acknowledged that there was some confusion
in the testimony of Grace Wong over whether the members of the selection panel actually attempted to discount the knowledge and experience gained by Mr. Thomas after March 1990. During
cross-examination she indicated that she thought that this was the case for Mr. Thomas and, perhaps, for other candidates. It w a s noted that her recollection was "very vague and indefinite."
It was also noted that in re-examination she acknowledged that she could have been confusing the competition before us with another SO3 competition between Mr. Ford and Alfred Cheung,
in which she w a s a member of the selection panel. It w a s noted that the Memorandum of Settlement establishing that competition specifically provided that the candidates' qualifications
were to be assessed as
61 of a certain date (Exhibit 58, clause 1(b) ) The c h c u n g competition" and the "Thomas competition" were very similar in t h a t they both resulted from grievance settlements,
were proximate in time, and the members of the selection panel were the same (Anklesaria, Wong, Linton and Ancevich). ( b ) Reference was made to the evidence of Ms. Anklesaria and Ms.
Ancevich, both of whom were clear in their recollection that no’ special allowance had been made for the recent experiee nce of Mr. Thomas or any other candidate, and no scores were
discounted. Their testimony, when viewed along with the potential for confusion between, the very similar Thomas and Cheung competitions, made it more-likely than not that M s . Wong
was remembering the wrong competition in this portion of her testimony. (c) As an alternative position, the Board was asked to find, should it not accept this conclusion, that Ms. Wong's
testimony would only cast doubt on her own scoring, as Ms. Anklesaria and Ms. Ancevich did not score in this fashion. 4. Access to All-In-One Course (a) Reference was made to the Union
argument that as a result of the delay in the posting of the position Mr. Thomas was able to take a course in All-In-One software which gave him an advantage in
6 2 the competition. At the same time, it was contended that M r . Ford was unfairly denied access to this course. (b) When referring to Exhibit 10 (the interoffice memo to SSD staff
invited to attend the course), M s . Anklesaria testified that only employees in the SSD Branch were invited to this particular session of the All-In-One course because the Branch paid
for its own members to attend. There was no evidence of arbitrary conduct as existed in Esmall (supra) cited in the Unions book o f authorities at Tab 12. In the Esmail case, the employer
had arbitrarily excluded the grievor from the training course offered to others in her department because it was assumed (unjustifiably) that-she would not be able to maintain adequate
attendance d u r i n g the course. It was also pointed out that, in the Esmail case, two members of the cornpetition panel had also been responsible for selecting employees to attend
the course, which led the Board to conclude that they were "under severe pressure'' to pick the same employees in the competition (see p.12 of the decision). This was distinguished from
the instant case where attendance at the A l l -I n -One course was not determined by anyone on the competition panel. (c) Reference was made to the evidence of Ms. Anklesaria that.
M r . Ford could have asked his own Manager in the TSB branch to send him to such a course. There was no evidence that such a request: had ever been submitted.
63 ( d ) Ms. Anklesaria also testified that only one question in the competition (number 2 2 ) was drawn from this course. Accordingly, the advantage enjoyed by Mr. Thomas, if any, was
very slight. 5. Access to All-In-One Programming Codes In responding to Mr. Ford's complaint that he could not teach himself about All-In-One software by accessing its codes directly
through his computer terminal because he did not have the necessary access privilege (Exhibit 9 ) M s . Anklesaria explained that m o s t employees, including Mr. Thomas, did not have
access privileges and could not read the codes directly either. She said that Mr. Ford could have taught himself about All-In-One by consulting r e f e r e n c e manuals in the library,
which were accessible to all employees in the workplace. 6. Identity of the Vacancy Posted Counsel for the Employer referred to the questions asked of Ms. Anklesaria, in cross-examination,
about whether the posted position was the one which had previously been occupied by M r . Fortier and Ms. DiMitri. She testified that the demands of the position were constantly changing
as a result of advances in technology, and that the position was posted to fill the Employer's need for a systems analyst in the Systems Development Unit of the
6 4 SSD Branch at the time of the competition. She stressed the fact that the core skills, duties and responsibilities of the position remained the same as those that were required when
Mr. Fortier and Ms. DiMitri were successful in the previous competitions. It was noted, in response to a question by the Board, Ms. Anklesaria a l s o confirmed that the position encompassed
the same duties that Ms. DiMitri would have been expected to perform if she had remained i n the position awarded to her. 7 . Was a Draft Position Specification Given to Candidates Before
the Interview? (a) In response to the submission of the Union that the position specification was under revision at the time of the competition, there being an inference that the Grievor
didn't have fair notice of the requirements of the position in which he was competing, counsel for the Employer referred to Ms. Anklesaria's evidence that all candidates were given the
latest draft of the position specification before the interview. (b) Counsel for the Employer also referred to the fact' t h a t the up-to-date description of the position was available
to all candidates in t h e job posting itself (Exhibit 3). Counsel n o t e d that in Mountain, 629/89 etc. (Fisher), referred to by the Union ( T a b 5 of the Union's case book), the
Employer did not provide copies of the position specification to the candidates (unlike the
65 present case) but the Board held that this was not a defect because, among other reasons, the candidates had seen the position description in the job posting. (See p . 2 of the decision.)
9. Compliance With Board Order To Produce Draft Specification On March 16, 1 9 9 2 , during Ms. Anklesaria's cross-examination, the Board ordered her to produce a copy of the draft posit-ion
specification. On July 31, 1992 the Employer's counsel sent this draft to the Union counsel in a letter. Counsel noted that there was no request to cross-examine M s . Anklesaria on
the document when the hearing continued on September 9 , 1992, and the matter was not mentioned again until the written submissions were delivered (see p.18 of the Union submissions.)
Counsel for the Employer maintained that as the document had been provided to Union counsel, as ordered, it was incumbent on counsel for the Union to introduce it into evidence, through
further examination of Ms. Anklesaria. 10. (i) Undue Emphasis on Communication Skills (ii) Relevance of Communication Skills To The Position (a) Oral. and written communication skills
were an important requirement of the position because it involved communicating with "end users" of the systems during the design phase in order to
6 G determine their requirements and during the implementation phase in order to train them to use the new systems. (b) The position specification in effect at the time of the competition
(Exhibit 6 ) stated, under "Skills and Knowledge." " A t this level, excellent verbal and written skills are essential to interface with end users at all levels during the s y s t e
m s development cycle, provide user training, assist, staff and w r i t e reports and user documentation." It was also noted that the draft position specification said to have been given
to the candidates prior to the competition (Appendix A to the Employer's written submissions) also specified that "excellent verbal and written communication skills are essential." (c)
There were 30 of 320 available points allocated f o r communication skills (15 in 'the oral presentation and 1 5 in the written question). Ms. Anklesaria acknowledged, during crossexamination,
that she could have assigned more points to oral presentation to reflect the need to interact with end users. in re-examination, she pointed out that Mr. Thomas' oral presentation was
better than Mr. Ford's, and assigning more points to this segment of the competition would have favoured Mr. Thomas, and h i s margin of superiority would have been greater if more points
had been allocated for communication skills.
11. Relevance of the Questions 57 In response to the position of the Union that "the Employer has been unable to produce the position specification for t h e vacancy which would assist
the Board in determining the relevancy of questions, counsel for the Employer noted that the Employer had produced the specifications in effect at the time of the competition (Exhibit
6 ) , the draft revision given to the candidates before the interviews (Exhibit A to the Employer's written submissions), and the revised specification implemented shortly after the
competition (Exhibit 7 ) . (a) Reference was made to the evidence of Ms. Anklesaria who explained in detail how each of the disputed questions related to the requirements of the position.
In general, systems analysts at the SO3 level design systems, while systems managers regulate access to the system by users. She explained that systems analysts must have much of the
same knowledge as systems managers in order to be able to ensure that the systems they design will function properly when subjected to the demands of users. She also said that systems
analysts must often direct systems managers to create special accounts and other devices in order to ensure the efficient functioning of the systems they design.
(b) during the cross-examination of M s . Anklesaria on March 17, 1992, counsel for the Union put a series of questions to her directed at establishing that systems managers work at
a different "level" from systems analysts. Ms. Anklesaria responded that from a technical point of view many of the questions asked by counsel for the Union made no sense. At that point
the Vice-Chair stated that it might be necessary for the Union to call its own exprrt witness to attempt to prove the point it was attempting to establish through Ms. Anklesaria. Counsel
for the Employer relied on the fact that this was not done, and Ms. Anklesaria's explanations of the relevance of the disputed questions remained uncontroverted. (c) In response to a
further question put to her in crossexamination, directed at establishing that systems managers could be classified at the SO4 level, Ms. Anklesaria replied that systems managers are
generally S O 3 ' s but may be lower or higher i.e. t h i s position does not connote a particular classification level. 13. Other Questions In Response To Attacks On The Relevance of
Several Other Questions Including Number 11 ( " R o w by Row Processing Number 13 (Experience with Relational Data Bases-), and Number 18 ( INGRES Storage Structures
69 (a) Ms. Anklesaria gave evidence, in some detail, concerning t h e relevance of each of the questions, and Ms. Wong, who also possessed technical knowledge and familiarity with the
work of the SSD Branch, confirmed that she had reviewed the questions before the competition and found them to be relevant to the position. ( b ) It was also noted that Ms. Anklesaria,
in d e a l i n g w i t h questions 21 to 23, involving the All-In-One software, stated t h a t only question number 22 was drawn from the course which Mr. Thomas at tended. 14. Impact
of Disputed Questions During his examination in chief, Mr. Ford questioned the relevance of the question or the appropriateness of the expected answer for questions 1, 3-9, 11, 13, 1
7 , 1 9 , 2 1 , and 2 2 . It was. noted that in four of these questions his score was equal to or better than Mr. Thomas', and in most of the others the margin was only one or two points.
The total difference in scores for t h e s e questions was only 27 points, whereas Mr. Thomas' total margin of superiority in scoring was 58 points (see summary of scores at Exhibit
33). 15. Was the Grievor Attempting to Achieve a Lateral Transfer?
70 (a) In response to the argument made on behalf of the Grievor that his application for an SO3 position in the SSD Branch was a "lateral transfer," as he had worked as an SO3 in the
TSB before the competition, reference was made to the evidence of Ms. Anklesaria and Ms. Wong, both of whom testified that there was a great variation in the skills and experience of
employees classified as S03's, and they explained that individual employees might work with different computer hardware and software so that an SO3 with experience in one environment
was not necessarily qualified to "transfer" to another one. Although Mr. Ford was classified as an SO3 in the TSB, it was submitted that he had not previously held the job in question
or any substantially similar one. (b) Ms. Anklesaria characterized the core experience requirements of the posted position as involving: systems analysis, design and development experience
with relational databases (theory and practice minicomputer environment communication and interpersonal skills and stated that Mr. Thomas' experiences in these areas were stronger, in
her judgement, than those of Mr. Ford. 16. The Grievor's Exoprience in the "YOA Project"
71 (a) Counsel for the Employer relied on the admissions by Mr. Ford that the nature of the work in the TSB was quite different from that performed in the SSD Branch. Counsel commented
on the Union's reliance on Mr. Ford's previous experience as a member of the team which developed software for the YOA computer system, being the only system development experience cited
by the Union. (b) Mr. Ford, in his evidence, claimed that he had been responsible for the entire "application software design" for the YOA project. Brian Brockington, who was Mr. Ford's
manager on the project, testified, during examination-in-chief, that he estimated that Mr. Ford had designed approximately one third of the application software as it existed at the
time he left the project, and not all of it as Mr. Ford claimed. Mr. Brockington also testified that Diana Avon had also worked on the application software during this period as part
of the YOA project team. (c) More importantly, from the Employer's perspective, Mr. Brockington described Mr. Ford's role as part of the YOA team and the limited application of this
experience to the disputed position. At the time he was on the YOA team, Mr. Ford was an SO2 and was the junior member of the team which included an SO4 (Sue Co) and an SO3 (Diana Avon).
Mr. Brockington testified that Diana Avon was the systems analyst on the project and had the primary responsibility for analyzing user requirements and designing the necessary database.
This was put forward as evidence that it was
72 Ms. Avon and not Mr. Ford who was performing work similar to the disputed position (which is also an SO3 systems analyst position). According to Mr. Brockington, the analysis of user
requirements (which was one of the skills required for the disputed position) had already been completed by Ms. Avon before Mr. Ford started working at the project. He added that Mr.
Ford was primarily working as a programmer rather than a systems analyst i.e. he was translating Ms. Avon's design into computer code, when he was a member of the YOA project team. (d)
Mr. Brockington also commented on the relevance of Mr. Ford's YOA experience to the requirements of the disputed position listed in the job posting (Exhibit 3 ) . He said that Mr. Ford's
experience was not applicable to most of the significant requirements listed below as set out in the job posting (Exhibit 3 ) : Implementing a network of departmental computers, LANS,
and personal workstations across Ontario using DEC VAX, All-in-One, hardware/office automation and INGRES relational DBMS/4GL. -identify user requirements -investigate systems opportunities
and problems -demonstrated skill in systems analysis -data planning ... techniques -excellent communication and interpersonal skills essential Based on the above evaluation of Mr. Brockington,
it was submitted that the Union's argument that the Employer failed to give sufficient weight to the experience of Mr. Ford that was said
73 to be "directly applicable to the vacancy" was not supported by the evidence. Counsel relied on Mr. Ford's own statements about the difference of the work in TSB and SSD Branch and
Mr. Brockington's evidence about the YOA project, intending to demonstrate that Mr. Ford had never performed work substantially similar to that of the disputed position. 17. Bias (i)
Ini. ti. al Objectio ns Against All Panel Mem bers During cross-examination, Mr. Ford initially objected to the participation of all of the members of the selection panel in the competition
but refused to state the nature of his objection to Ms. Linton and Ms. Wong. Union counsel objected to his being pressed on this point, which objection was overruled and Mr. Ford then.
withdrew his objection to these two panelists. He also objected to the participation of Jan Ancevich because he believed that she was merely going to "oversee" the competition rather
than participate directly as she did. In response to a question from the Vice-Chair, he admitted that no one told him that Ms. Ancevich would not be a full participant in the selection
process. His objection to her participation was not pursued further, although the Union maintained that she lacked sufficent technical knowledge to independently score the candidates'
answers.
74 (ii) Alleged Bias of Ms. Anklesaria Against Mr. Ford (a) In his written argument counsel for the Union objected to the participation of Ms. Anklesaria on the selection panel because
she had been on panels in several competitions in which Mr. Ford had been unsuccessful before the competition in question. Mr. Ford admitted that he had also unsuccessfully applied for
positions in the SSD Branch on numerous other occasions when Ms. Anklesaria was not involved in the competitions. (b) Counsel for the Employer stressed that all of the members of the
selection panel in this case, including Ms. Anklesaria, were chosen by agreement between the Union, Mr. Ford, and the Ministry (see Exhibit 5 ) . This was regarded as being a complete
answer to all of the objections against Ms. Anklesaria of which Mr. Ford and the Union were aware at the time the Memorandum of Settlement was signed. Even if, as alleged by the Union,
the Employer insisted on Ms. Anklesaria, the Union would not suggest any alternatives. The Union and Mr. Ford did not have to accept the offer of settlement and could have proceeded
with the grievance. Having signed the Memorandum, it was submitted that Mr. Ford and the Union are estopped from raising these objections. (c) In the alternative, counsel for the Employer
submitted that the Union had failed to support its allegation with evidence demonstrating actual bias. Reference was made to Mr. Ford's
75 evidence-in-chief where he claimed that the Employer had insisted on the participation of Ms. Anklesaria but, in later crossexamination (on September 20, 1991), he admitted that he
could not recall whether or not Bryan Brockington, Mounir El-Hakim, and James White had been offered by the Employer as alternatives to Ms. Anklesaria. He admitted that this was possible.
(d) It was also submitted that the Union was estopped by the fact that the Employer offered, shortly before the interviews were to take place, to amend the Memorandum of Settlement to
remove Ms. Anklesaria from the selection panel due to the possibility that Mr. Ford would, at some point in time, "come to question the appropriateness of h e r participation on the
panel" (see Exhibit 54, letter from Marcia Gottesman, to counsel for the Union). In his reply, Union counsel rejected the offer while taking the position that Mr. Ford had not thereby
waived any of his rights (Exhibit 5 5 ) . It was submitted that it would be unfair to the Employer to allow the Union to advance any objection to Ms. Anklesaria of which it was aware
at the time the offer was rejected (September 1990, prior to the interview). (ill) Negative Infere nces Sug gested By The Union (a) In response to the request that the Board draw negative
inferences because Marcia Gottesman and David Court-Hampton had not been called as witnesses by the Employer, counsel for the Employer
76 submitted that no evidence was required from the Employer on this point because (1) the Union and the Grievor agreed to Ms. Anklesaria by signing the Memorandum of Settlement rather
than proceeding with the grievance, ( 2 ) they later refused to have Ms. Anklesaria removed from the panel, and 13) Mr. Ford testified that he did not remember whether any alternatives
to Ms. Anklesaria were offered and admitted that they might have been. It was submitted that where no evidence from the Employer was necessary, no adverse inferences could be drawn from
the decision not to call evidence from particular witnesses. (b) As an alternative argument, counsel for the Employer submitted that adverse inferences could only be drawn when there
was no alternative explanation for the decision not to call a witness and relied on the statement in the quotation from Wigmore on Evidence (at p . 5 2 ) : "These inferences ... are
open always to explanation by circumstances which makes some other hypothesis a more natural one than the party's fear of exposure." Counsel for the Employer noted that the Vice-Chair
had indicated, during Mr. Ford's crossexamination, that the Board would consider evidence from Ms. Gottesman on this point to be hearsay. This is the reason she was not called as a witness,
according to counsel for the Employer, who also stated that Mr. Court-Hampton was not called because he had no recollection of the negotiations which led to the selection of the panel.
77 (iv) Alleged Bias of Ms. Anklesaria In Favour of Mr. Thomas (a) In responding to the Union's argument that Ms. Anklesaria was biased in favour of Mr. Thomas because they had previously
worked together, she had interviewed him for a previous position, and they had car pooled to work together, counsel for the Employer noted that Ms. Anklesaria testified that Mr. Ford
had previously accused her of favouritism toward Mr. Thomas as a result of an SO2 ,competition in which Mr. Thomas was successful and Mr. Ford placed seventh (see her cross-examination
February 24, 1 9 9 2 ) . In the face of this evidence, the Union and the Grievor signed a Memorandum of Settlement which appointed Ms. Anklesaria to the panel, and it was submitted that
the estoppel argument applies to an allegation of bias in favour of Mr. Thomas as well as to the allegation of bias against Mr. Ford. (b) It was also submitted that an inference of bias
could not reasonably be drawn from these facts as, if it could, the Employer would have great difficulty finding interviewers for internal candidates, especially in small departments.
Counsel for the Employer noted that there was no evidence of any advance disclosure of questions or coaching of Mr. Thomas or of any other impropriety. Counsel also noted that Ms. Anklesaria
had testified that, as soon as she became aware that Mr. Thomas had applied for the position, she made it clear to him that they could not discuss the
78 competition and, in a further effort to be as detached and fair as possible, declined to give Mr. Thomas a reference. (c) Reference was made to the Katsuno case cited by the Union,
at Tab 11 of its book of authorities, where there was no evidence that the relationship between the candidate and the interviewer "materially influenced the competition process." It
was submitted that this test applied a for tiori in the instant case, where, unlike in Katsuno, there was no evidence of personal friendship between the interviewer and the candidate.
17. Cons ensus Scor ing (a) Counsel for the Employer submitted that there was no evidence to support the Union's allegation of consensus scoring, and there was no evidence to undermine
that of Ms. Anklesaria, Ms. Wong, and Ms. Ancevich, who all testified that the panel members scored individually. (b) Counsel for the Employer submitted, in response to the argument
of the Union that the Board should presume Ms. Anklesaria must have had an undue influence on the scores awarded by the other panel members because of her technical knowledge, that the
evidence did not support this allegation. Reference was made to the evidence of Ms. Wong and Ms. Ancevich, both of whom testified that Ms. Anklesaria did not make any suggestion to any
of the panelists
79 that they should change their scores. They testified that Ms. Anklesaria provided the questions and suggested answers to them in advance and explained anything that they did not understand.
(c) It was submitted that Ms. Wong clearly had the necessary technical expertise to fully understand the questions and answers herself; she had worked with computers for many years and
had worked in both SSD and TSB. Ms. Anklesaria testified that Jean Linton also had some technical knowledge and seemed to have understood the questions and answers before the interview
began. Jan Ancevich clearly had no technical expertise, but she had been included in the selection panel at Mr. Ford's request, as he admitted in his testimony. He knew that she had
no knowledge of computers and selected her because of her experience with employment equity matters. (d) It was also submitted that no negative inference could be drawn from the failure
to call Ms. Jean Linton as a witness as the three other panelists gave evidence on how the competition was conducted and no allegation was raised that could only be answered by Ms. Linton.
18. Review of Performance Appraisals and References
80 (a) Counsel for the Employer noted that Ms. Anklesaria testified that she had reviewed the performance appraisals of the candidates after the interviews, and she had not been aware
of the Ministry's policy of removing appraisals from personnel files after five years. (Counsel noted that the retention period was five years and not three years as stated at p.14 of
the Union's written submissions.) The relevant excerpt from the Ministry's policy manual was provided to the Union counsel during cross-examination of Ms. Anklesaria and was put to her
in questioning but was not entered as an exhibit. (b) In re-examination, Ms. Anklesaria explained that the performance appraisals in the personnel file had been filed chronologically,
with the most recent appraisal on top. She said that she had reviewed them from the top of the file (working backwards in time) and had stopped "after two or three years," at the point
where Mr. Ford was working in the SSD Branch. There was therefore no evidence that she reviewed performance appraisals which were more than five years old. In any event, it was submitted
that no evidence was led by the Union to indicate that the review of older appraisals would likely have had a negative effect. 19. Refere nce Gi iven for Mr. Tho mas by Ms. Whetstone
81 Counsel for the Employer responded to the Union's submission that Ms. Whetstone's very positive reference for Mr. Thomas was tainted by the fact that Mr. Ford had filed a grievance
against another competition in which she was the successful candidate, and that the other panel members had not been told of these circumstances. It was suggested that if they had been
so informed, they might have given little or no weight to her reference. Counsel for the Employer stated that if the other grievance had any effect, two opposite scenarios could be proposed:
either Ms. Whetstone tried to hinder Mr. Ford by giving Mr. Thomas a good reference or she tried to help Mr. Ford by giving Mr. Thomas a bad reference in order to deflect Mr. Ford away
from seeking her position. He also referred to the Vice-Chair's comment made during the hearing that it was a matter of pure speculation as to the possible effect of Mr. Ford's grievance
in the Whetstone case on Ms. Whetstone being able to give an objective evaluation of Mr. Thomas. It was further submitted that in the absence of any evidence, this argument of the Union
was unsupported. 2 0 . Performance Appraisals Not Reviewed By All Panelists Counsel for the Employer acknowledged that the performance appraisals should have been reviewed by all panelists
and agreed that Ms. Anklesaria reviewed the performance appraisals, checked the references of the candidates after the interviews and then
82 reported her findings to the other members of the selection panel. Counsel noted that the failure to have all of the panelists review the performance appraisals, as noted in MacLellan
and DeGrandis GSB #506/81, (Samuels) was only material to the grievance if following the proper procedure would likely have affected the outcome of the competition (Vaillancourt GSB
#1620/87, (Wilson), followed in Peters GSB #1423/90) (Kaplan). Counsel argued that as Mr. Thomas' performance appraisals (Exhibits 45-47) were more positive than Mr. Ford's (Exhibits
40-44), or at least equally positive, this cannot be demonstrated. D. Written RePly of the Union to the Writt en Submissions of the Counsel for the Union responded to the various written
submissions of the Employer as follows: 1. (i)Late Posting of the Position (ii)Breach of Minutes of Settlement (a) The significance of the late posting of the position for the Union
was the fact that it enabled Mr. Thomas to gain experience in what the Employer regarded to be the duties and responsibilities of the posted position. This was regarded by the Union
as representing an unfair advantage to Mr. Thomas which, it was
83 suggested, rendered the competition results unreliable as they resulted in the panel (at least the majority of them) taking into consideration experience which would not have been
the case but for the late posting of the position. (b) Counsel for the Union's response with respect to the subject heading was two fold. He once again relied upon the fact that Ms.
Anklesaria acknowledged that, as far as she knew, the position was never eliminated for lack of funding. The evidence relied upon by the Employer to respond to this allegation is found
at Exhibit 39, which is a letter from Marcia Gottesman, counsel for the Ministry in a grievance of Mr. Ford against the Employer, referenced as the file number 8/89. The letter is dated
June 20, 1990 and is addressed to Ian Roland, the Union's counsel in that grievance. It would appear that the GSB file reference is with respect to the grievance that led to the Minutes
of Settlement (Exhibit 5 ) . Exhibit 39 was a response to Exhibit 38, which is a letter to Ms. Gottesman from Mr. Roland which is as follows: Via Tel efax & R egular Mail June 15, 1990
Ms. Marsha Gottesman Ministry of Community & Social Services Legal Services Branch 4th Floor, Hepburn Block 80 Grosvenor Street Queens Park Toronto Ontario M7A 1E9 Dear Ms. Gottesman:
84 RE: OPSEU (Ford) & Ministry of Community & Social Services OPSEU File No: 89B476, GSB file No: 0008/89 and Order of the Board dated January 19, 1990 As you know,. we act on behalf
of OPSEU with respect to this matter. By Order of the Board dated January 19, 1990, the Ministry was required to post the position "in or about March, 1990 unless in the meantime the
position is eliminated for lack of funding". No posting has taken place and our information is that the position has not been eliminated for lack of funding. As a consequence the Ministry
is in violation of the Order of the Board. Unless the position is posted within 10 days of the date of this letter, we will have no alternative but to bring an application to the Courts
to have the Minister and Deputy Minister found in contempt of this Order of the Board. Exhibit 39 is as follows: LEGAL SERVICES BRANCH 4th Floor, Hepburn Block 80 Grosvenor Street Toronto,
Ontario M7A 1E9 Telephone: (416) 965-5147 June 20, 1990 Mr. Ian Roland GOWLING, STRATHY & HENDERSON Barristers & Solicitors Suite 2400, 2 First Canadian Place TORONTO, Ontario M5X 1A4
Dear Mr. Roland: Re: Grievance of Kirk Ford & Ministry of Community & Social Services G.S.B. File # 0008/89
85 Further to your memo of June 15, 1990, please be advised that I Rave had the occasion to speak to my client, Mr. Court-Hampton, about the posting for the position of Systems Officer
3 . My client has advised me that the position had not been posted in March, 1990 as agreed due to the fact that his department has had severe salary constraints. Mr. Court-Hampton has
informed me that there is a vacancy factor of 9% in his department and therefore, although vacancies may have existed, they were unable to be filled. Mr. Court-Hampton has informed me,
however, that there is now sufficient funding to post the position in question. He has indicated that it is his intention to post the position in July, 1990 and intends to adhere to
the other conditions set out in our agreement dated January 19, 1990. As a result of the above, I would think that it will be unnecessary for you to bring an application to the court
to have the Order of the G.S.B. enforced. I trust this is satisfactory and thank you for your anticipated co-operation. (c) Counsel for the Union characterized Exhibit 39 as representing
a form of "double" heresay, being "a letter from another counsel for the Employer which cites a conversation with David Court-Hampton, who was not called as a witness by the Employer."
The submission of the Union was that "the Employer had chosen to shield David Court-Hampton from cross-examination on this and other issues while attempting to rely on second-hand statements
attributed to him to justify what is admitted by the Employer to be a breach of the Minutes of Settlement." (d) The Union's submissions in reply reiterated the importance of the need
to post the position in March of 1990 to avoid the very
86 happening that occurred: the incumbent, Mr. Thomas, gaining "an unfair advantage" being the result of the delay in posting. (e) Counsel for the Union also found significance in the
fact that the Employer chose to address the situation by overcoming the "... salary constraints" (Exhibit 39), only after receipt of Exhibit 38 which alleges: No posting has taken place
and our information is that the position has not been eliminated for lack of funding. As a consequence the Ministry is in violation of the order of the board. (f Counsel for the Union
stated that there had been no accounting for the fact that Ms. Anklesaria and the other members of the panel, with the possible exception of Ms. Wong, had failed to compensate, or balance
the interests of Mr. Ford with Mr. Thomas as a result of the passage of time between March 1990 and September of 1990; the panel ignoring the advantage to Mr. Thomas as a result of his
attendance at the All-In-One course. Counsel for the Union submitted that based on the Minutes of Settlement, which must be taken as evidence that the parties had applied their minds
to the terms of what they perceive to be a fair competition, the breach of the term with respect to posting by March of 1990 becomes more significant in the absence of evidence from
the Employer to explain the delay. We were asked to find that reliance on a letter that effectively shielded David Court-Hampton from cross-examination was not satisfactory and should
be given little if any weight.
87 (g) We were directed to p.17, para.(u) of the Union's written submissions of January 1993, where it was noted that Ms. Anklesaria stated, on at least two occasions, that she was merely
acting in accordance with Mr. Court-Hampton's instructions; that he was responsible for defining the position as a new position, and that he was responsible for the original Minutes
of Settlement in December of 1989, the terms of which she had some disagreement with. (h) We were asked to find, from the overall evidence of Ms. Anklesaria and a reading of Exhibits
38 and 39, that the Employer (i) was not in a position to explain away the breach of the term of the Minutes of Settlement, (ii) has (through Ms. Anklesaria) directed the Board to David
Court-Hampton who was not called as a witness and (iii) has failed to satisfy .the evidentiary burden placed on it to explain the delay in posting the position. (1) We were asked to
review the case of Desi/Bousquet, relied upon by the Employer, as actually supporting the position of the Union, because, at p.6, the Board noted: Having studied the Board Order [incorporating
Minutes of Settlement, involving a rerun of a competition between two grievors and an incumbent, which were similar, but not identical to those in the instant case] Mr. Riviere then
prepared a memorandum (Exhibit 4 ) for the others and for the file, fleshing out the specific directions contained in the Order. j) Counsel for the Union stated that unlike the Desi/Bousquet
case, Ms. Anklesaria testified that she did not agree with the
88 propriety of "these types of Minutes of Settlement and made no effort to ensure that Mr. Ford was not prejudiced by the breach of paragraph 1 of the Minutes dealing with posting the
position in or about March of 1990. " (k) The Board notes that the minutes of settlement in the Desi/Bousquet provide: The interview question shall not be designed so as to give an advantage
to the incumbent as a result of her being in the position that is the subject matter of the competition. An examination of the minutes of settlement in Desi/Bousquet indicate that they
are quite different from the ones before us: The parties agree to settle the grievances of Romeo Bousquet and Jeannette Desi on the following terms: ( 2 ) The original competition shall
be re-run restricted to the two grievors and the incumbent, to be conducted as soon as possible. ( 3 ) The new interview panel shall not be composed of any of the members of the original
panel. It shall be composed of three persons, two of whom shall be selected by the Employer from the following individuals if available: ......D avid Cope Jim Purves (and others) The
third member of the' panel shall be selected by the Employer and may be one of the 7 named individuals or another person as chosen by the Employer. ( 4 ) The interview questions shall
not be designed so as to give an advantage to the incumbent as a result of her being in the position that is the subject matter of the competition.
89 ... ( 6 ) Candidates must be evaluated on all the relevant qualifications for the job as set out in the Position Specification. ( 7 ) The various methods used to assess the candidates
should address these relevant qualifications insofar as is possible. For example, interview questions and evaluation forms should cover all the qualifications. (8) Irrelevant factors
should not be considered. ( 9 ) All the members of the selection committee should review the personnel files as at the date of the original competition. (10) The applicants' supervisors
should be asked for their evaluations of the applicants. (11) Information should be accumulated in a systematic way concerning all the applicants ..... (1 ) -Reference was made to the
finding of the Board at p. 14 of the Desi/Bousquet case: As for the courses that Ms. Perusini [the successful candidate1 took, there was no evidence that either of the grievors could
not have taken similar or indeed better courses, had they wished, that would have advantaged them in their ultimate interviews. We can hardly fault Ms. Perusini for being ambitious or
resourceful. (m) Reference was also made to the statements of the Board in the Desi/Bousquet case at p.15: In the instant case, we have already pointed out that there is nothing of a
contractual nature that required the committee to overlook Ms. Perusini's qualifications gained while in the acting position. (Emphasis in the Reply of Counsel for the Union) (n) We
were asked to find that in the case before us: That it was clearly the intention of the parties to limit the on-the-job expertise that would be acquired by Mr. Thomas which would
90 obviously be an advantage to him in the competition. Even if this Board accepts that the hearsay evidence introduced by the Employer as a satisfactory explanation for the failure
to post the position by March of 1990, it was incumbent upon Ms. Anklesaria to at least provide Mr. Ford with the opportunity to attend the same course as Mr. Thomas, which was not done.
Ms. Anklesaria was aware of the Minutes of Settlement shortly after they were prepared and was also aware that she would be sitting on the interview panel. Mr. Ford was simply left to
his own devices and was not even given notice of the opportunity to attend this intensive five-day course. (0) It was submitted that in Be si/Bousquet there was some explanatian, which
was accepted by the Board, as to why the successful incumbent was given the opportunity to attend a relevant course, and this was said not to be the case in the matter before us. (p)
We were also asked to note that at p.28, para.(p) of the Union’s written submission, Ms. Wong admitted that the position had never been eliminated as a result of lack of funding. 2 .
Influence on Scor ins of Candi dates: (Evidence of Grace Wong) (a) Counsel for the Union repeated the assertion found at p . 2 9 , para.(t) of the Union’s written submissions, that Ms.
Wong had testified that she deducted points to account for the late posting
91 of the position and that there was no objective standard for her to use in common with other members of the interview panel to ensure that she was deducting the same number of points
as they were for a particular candidate. We were asked to consider the fact that we might have been assisted in resolving any "confusion" as alleged by the Employer in its written submissions,
if the Employer had called M s . Linton. (b) We were also asked to reject the Employer's suggestion that: In the alternative, if the Board does not accept this conclusion [with respect
to Ms. Wong's confusion1 Ms. Wong's testimony would only cast doubt on her own scoring, since Ms. Anklesaria and M s . Ancevich did not score in this fashion. It was submitted that we
had no means of assessing the impact of Ms. Wong's method of scoring on the overall result and that we ought to accept her evidence that she believed that the method of scoring employed
by her was being followed by the other members of the panel. 3 . Access to All-In-One Course (a) Counsel for the Union submitted that the attempt by the Employer to distinguish the award
in Esmail by arguing that Ms. Anklesaria testified that only employees in the SSD Branch were invited to a particular session of the All-In-One course because the Branch paid for its
own members to attend, begged the question.
92 The issue before the Board was said to be whether and why Mr. Ford was denied the opportunity to attend a course that was relevant for duties to be performed in the vacancy. There
was said to be no evidence that the TSB was given an opportunity to fund Mr. Ford's attendance, nor was there any evidence that the SSD Branch would not have agreed, in these exceptional
circumstances, to fund Mr. Ford's attendance had Mr. Ford been given the opportunity to attend. (b) We were also asked to discount the statement, at p.4 last line, of the Employer's
submissions that: "In the present case, however, attendance at the All-In-One course was not determined by any one on the competition panel." It was submitted that Ms. Anklesaria, Mr.
Thomas, Mr. Court-Hampton and Mr. Brockington all had knowledge of the fact that this course was to be given and that the mailing list existed and included Mr. Thomas' name. They therefore
should be found to be deemed to have knowledge that Mr. Ford was excluded. 4. Access to All-In-One Programming Codes The allegation made by the Employer that Mr. Ford could have taught
himself about All-In-One by consulting reference manuals in the library was inconsistent with the decision that it was necessary to send members of the SSD Branch on a five-day training
course. Ms. Anklesaria's evidence was said to be self-serving and
93 contradicted her own conduct at that time, as she found it necessary to attend the course. 5. Identity of the Vacancy Posted -Absence of Draft Position SPecification as an E xhibit
Int roduced In to Ev idence (a) It was submitted that in Bent, 1733/86 (B. Fisher) and Mountain, the position specifications for the vacancy were not in dispute and were appended as
exhibits-to the awards. We were asked to reject the allegation of the Employer that the evidence of Ms. Anklesaria should be accepted where she explained that the demands of the position
were constantly changing due to changes in the technology and that the position was posted to fill the Employer's requirements "at the ti me of the competitio n ... although the core
skills remained the same." (Emphasis in the Union's written reply. (b) Counsel for the Union submitted that the Minutes of Settlement and the evidence of Ms. Anklesaria confirm that
the vacancy which was to be posted was initially meant to be SS-96, yet she had no explanation for why SS-96/90 is described in Exhibit 34 as "new position." The Minutes of Settlement
clearly address the duties envisaged by the original DiMitri vacancy, and any change of those duties should have been properly brought to the attention of Ford to avoid any confusion
or irrelevancy in the questions being asked.
94 (c) We were asked to find the evidence of Ms. Anklesaria to be contradictory in that, in examination-in-chief, she did not mention giving a position specification or draft position
specification to Mr. Ford. It was only during cross-examination on February 24, 1992 that she admitted that the duties and skills for the vacancy changed between the time the vacancy
was originally created and the time interviews were conducted in September of 1990. And further, she alleged for the first time, during cross-examination, that the position specification
was being re-drafted (the inference being that this was to account for the change in duties, including the emphasis on All-In-One among other things) but that the position specification
was not yet completed. She also alleged, for the first time during cross-examination, that a draft position specification had been given to Mr. Ford prior to the interview to assist
him in understanding the duties to be performed. (d) It was noted that during her examination-in-chief Ms. Anklesaria demonstrated difficulty in remembering specific events or in separating
the evidence with respect to this hearing from other hearings involving Mr. Ford. (e) Ms. Anklesaria's evidence on this point was contrasted with Mr. Ford's evidence-in-chief and on
cross-examination. He was said to have exhaustively reviewed the events leading up to the competition, including the documents that he had been given. He made no mention, in chief, of
having been given a draft position
95 specification, and it was noted that he was not cross-examined on this fact, nor were any draft specifications put to him in crossexamination. (f) Ms. Wong gave no evidence concerning
the draft specification and could not recall (during cross-examination) a specification or draft specification for an SO3 position in the SSD Branch. (g) No attempt was made by the Employer
to introduce the draft position specification through M s . Ancevich. (h) It was the position of the Union that the Employer could have called Mr. Court-Hampton or Mr. Tremblay to explain
the status of the position specification. The Union argued that we should find that M s . Anklesaria was mistaken and disregard the fact that counsel for the Employer had served a draft
specification upon the Union, as no draft specification had been given to M r . Ford by anyone on behalf of the Employer. The Union reiterated the fact that Mr. Thomas was not called
to identify a draft specification that had been given to him at or before the interview. 6. Obiection by the Union to the Attempt by Employer to Introduce Into Evidence. After Completion
of Hearing, Appendix "A" to Employer's Written Submissions (Alleged Draft Position Specification)
96 (a) The Union's position was that it was not denying that drafts and re-drafts of specifications with respect to the position were being created by the Employer. No issue was taken
with the evidence of Ms. Anklesaria that the position specification was undergoing revision at the time of the interview. (b) What the Union objected to was the attempt by the Employer
to introduce into evidence a document which it had ample opportunity to put to either Ms. Anklesaria, on re-examination, Ms. Wong during her examination-in-chief and Ms. Ancevich on
examination-in-chief. In addition, it could have called Mr. Thomas, Mr. Tremblay or Mr. Court-Hampton to identify the document. (c) The issue between the parties as to who had the obligation
to introduce the document was again raised in the Union's reply, referring to the statement at p.7 of the Employer's written submissions: The Employer takes strong exception to this
criticism, since the document was provided to Union counsel as ordered and it was incumbent on him to introduce it into evidence, if he chose to do so, through further crossexamination
of Mrs. Anklesaria. (d) The Union submitted that the above statement was wrong in law and missed the point. The Union did not deny the existence of the draft. What was denied was the
existence of any evidence that was properly before the Board on which a finding of fact could be made that a particular draft position specification had been given to Mr. Ford before
the interview. Ms. Anklesaria had not identified
97 the draft position specification that she alluded to, and none was filed as an exhibit. The action of the Employer, in attempting to introduce into evidence, after the completion
of the hearing, the alleged draft position specification, was said to be improper "at this late date." (e) We were asked to find that there was no draft position specification introduced
into evidence, and that this was "a result of .the conscious and deliberate decision of counsel for the Employer not to expose his witnesses to cross-examination on it. Indeed, on the
evidence of Wong there was no draft position specification given to the candidates, and Ancevich made no comment nor was asked to make any comment on this point by counsel for the Employer.
(f) The reliance placed by the Employer upon the draft position specification (which the Union objected to, claiming that it was not evidence before the Board) was said to be significant
at this stage. It was submitted that if the Employer wished the Board to rule in its favour with respect to this draft specification, it should have introduced it into evidence, however,
it had failed to do so. As a result, the failure of the Employer to expose certain witnesses and potential witnesses to cross-examination upon the document, or even to put the question
to Wong or Ancevich, was said to be a significant omission based on a calculated decision arrived at at the time "to shield its witnesses from cross-examination."
98 (g) We were asked to find, on a balance of probabilities, that there was no draft specification given to Mr. Ford and that the reliance by the Employer's counsel on that document
compromises the following matters relied upon by him: (i) identity of the vacancy posted (page 5 ) . (ii) compliance with Board Order to produce draft specification (page 6 ) . (iii)
undue emphasis on communication skills (page 7 ) . (iv) relevancy of questions asked (page 8 ) . The position specification is also a relevant and necessary fact in two of the decisions
relied on by the Employer at -Tab #4 and Tab #5 of the Employer's Written Submissions. 7. Undue Emphasis on Communication Skills (Page 7 of Employer's Written Submissions) (a) The Union
repeated its position with respect to the allegedly undue emphasis placed by Ms. Anklesaria on communication skills (Union brief p . 2 4 , para.(dd)) as corroborated by the evidence
of Ms. Wong and Ms. Ancevich, who did not regard communication skills to be of any special importance. We were again asked to find that the emphasis by Ms. Anklesaria on communication
skills affected the manner in which she scored all three aspects of the competition, i.e. interview, slide presentation and written answer. We were again asked to find that it was irrelevant
whether Mr. Thomas was a better communicator than Mr. Ford, if communication skills were not given the significance alleged by Ms. Anklesaria.
99 (b) Reference was made to the fact that Ms. Anklesaria testified, in cross-examination, that she should have assigned more points to questions that dealt with communication skills
to better reflect her perception that there was a need to interact with end users and this was a significant qualification for the job. The Union's position throughout was that this
was not a significant qualification for the job but merely one of many and therefore was an irrelevant consideration to the extent that it was overemphasized by Ms. Anklesaria. (c) The
Union referred to the difference between Ms. Wong and Ms. Ancevich and Ms. Anklesaria as to the emphasis that ought to have been placed on communication skills. The argument advanced
by counsel for the Employer: that it would have made no difference or that it would have favoured Mr. Thomas in any event, was said to fail to take into account the fact that it was
an irrelevant consideration, or that the other members of the panel might have restructured the entire interview if they had been told by Ms. Anklesaria that communication skills were
a primary or significant consideration. (d) Mr. Ford was said to have been misled because he believed the DiMitri vacahcy was being rerun, while Ms. Anklesaria was simply picking and
choosing emphasis on those skills, abilities and suitabilities that she considered relevant, ignoring the requirements of the Minutes of Settlement.
100 (e) The position of the Employer was regarded as a matter of mere speculation: that the over-emphasis placed by Ms. Anklesaria would not have made any difference because there was
a disagreement between the Employer's witnesses that Ms. Anklesaria correctly gave emphasis to communication skills. ( f ) The Union repeated its position that there was a "final contradiction"
in the position taken by the Employer's witnesses as Exhibit 40, item 8, being a performance appraisal given while Mr. Ford was an SO2 at the SSD Branch, stated that: Item 8, principle
accomplishments and/or strengths and performance: technical skills. Interacted well with users during prototyping. Ms. Anklesaria agreed that this exhibit was a relevant performance
appraisal that was directly relevant to the vacancy. She also agreed that the appraisal was a good one and showed that Mr. Ford had had a good experience working with end users, which
is contrary to her assertion that Mr. Ford lacked communication skills or the ability to work with end users. (g) Ms. Wong and Ms. Ancevich relied on Ms. Anklesaria to tell them what
was contained in the performance appraisals and references. The Union submitted that Ms. Anklesaria had not clearly identified for the panel the performance appraisals of Mr. Ford while
working on a position in the SSD Branch, which the Union regarded as a related position. Ms. Anklesaria was said to have ignored a relevant performance appraisal despite the attempts
of
101 the Employer to argue that communication skills with end users was a relevant consideration that was given a great deal of weight by Ms. Anklesaria and by the panel at the time of
the competition. M s . Ancevich did not remember discussing Mr. Ford's performance appraisals with M s . Anklesaria. 8. Impact of Disputed Questions (Pages 10 and 11 of Employer's Written
Submissions) (a) It was submitted that the Employer was engaging in an exercise of mere speculation in endeavouring to minimize the impact of questions that were in dispute. The Union
argued that it was "an equally consistent characterization of the impact of these disputed questions ... that had they not been asked at all but had questions been asked more relevant
to the duties, if those duties could have been identified more clearly, then Ford, given his experience, may have scored significantly higher than Thomas. If the questions themselves
are flawed then reliance on those flawed results is not useful to the Board." (b) The Union maintained its position that the experience of Mr. Ford in the TSB and while at the SO2 level
during his 18 month secondment to the SSD Branch, as well as his performance appraisals while an SO2 at the SSD Branch, represented ample evidence that he was qualified to perform the
duties. Reference was again made to the Minutes of Settlement, at para.4, as representing an
102 acknowledgement that Mr. Ford was qualified to be interviewed for the position of S 0 3 . 9. Weight Given to Grievor's EXP erience as an SO3 (Page 11 of EmPloyer's Written Submissions)
(a) The Union strongly disagreed with the position of the Employer that Mr. Ford had not held the job in question or any substantially similar one .and asked us to review Mr. Ford's
resume, the performance appraisals (Exhibit 401, his evidence as summarized at pages 9 through 12 of the Union's written submission, the evidence of Ms. Anklesaria, the evidence of Ms.
Wong and the evidence of Mr. Brockington. (b) We were asked to note Ms. Wong's disagreement with the general statement that work experience in the TSB was not as good as experience in
the SSD Branch for persons applying for positions in the SSD Branch for the SO3 vacancy. We were also asked to consider Ms. Wong's having taken into account Mr. Thomas' SSD Branch experience
and her regarding it as being unusual that a person with Mr. Ford's background scored so poorly for an SO3 vacancy in the SSD Branch as he was, at that time, an SO3 in the TSB. (c) We
were invited to look at all of Ms. Anklesaria's evidence and not to ignore the evidence of the other witnesses in dealing with this issue.
103 ( 1 0 ) Experience on YOA Project -Evidence of Mr. Brockinston (Pages 12 and 13 of the Employer's Written Submissions) (a) The Union disagreed with the statement at page 13, second
paragraph of the Employer's written submissions, that Mr. Brockington had testified in chief that he estimated that Mr. Ford had designed approximately one third of the application software
as it existed at the time he left the project. (b) Reference was made to the statement made in the Union's written submissions at page 33 (c) where Mr. Brockington admitted, on cross-examination,
that Mr. Ford had designed all the screens shown in Exhibit 35 and also admitted that Mr. Ford designed a substantial part of the application software as at the time he Ford left the
project. We were asked to find, given the evidence that the YOA application software was constantly under revision, that it was not surprising that over the passage of time the percentage
of Mr. Ford's contribution decreased as work on the project continued. (c) We were asked to discount the statement made at p.14 of the Employer's written submissions where it relied
on the comments of Mr. Brockington as evidence that the interview panel gave sufficient weight to the experience that was directly applicable to the vacancy. This was because Mr. Brockington
was not on the interview panel, and we were to adjudicate on whether the panel assessed the skill, ability, suitability and work experience of Mr.
104 Ford and not how Mr. Brockington might have performed this assessment, in hindsight. We were also asked to note that Mr. Brockington was comparing what Mr. Ford had done while under
his supervision with the description of duties and job posting at Tab 3 and was not considering the entire history of Mr. Ford's work experience. We were also asked to note the Mr. Brockington
had admitted that Mr. Ford's work experience was relevant to many parts of the job posting and also admitted that he had given Mr. Ford good work performance appraisals, including his
comment that Mr. Ford demonstrated the ability to interact well with end users. (11) Bias (Page 15 of EmPloyer's Written Submissions) (a) The Union repeated its position with respect
to bias: (i) that the letter written by counsel for the Employer at a different hearing did not inform the Union about Ms. Anklesaria's relationship with Thomas, (ii) that Mr. Thomas
would name her as a reference, (iii) that she had car pooled with Mr. Thomas, (iv) that she had sat on interview panels regarding Mr. Thomas' prior promotions, (v) that she did not draw
these items of information to the attention of the other members of the panel including Ms. Ancevich, who was the expert in fair procedure during competitions. (b) For this reason it
was submitted that the Union could not have discovered or known of the alleged bias when it received the letter (Exhibit 5 4 ) . The Union could not know until all of the evidence
105 of the hearing was in of the full extent of Ms. Anklesaria's inability to treat Mr. Ford fairly. (c) The Union was not advancing objections noted at p.17 of the Employer's written
submissions ". of which it was aware at the time the offer was rejected." (d) We were asked to note that Ms. Anklesaria had kept her "real concerns hidden from the Union, at the time
the letter was written, but she also did not disclose the full extent of her relationship with Thomas, nor the manner in which she conducted herself, including the Whetstone reference,
to the other members of the interview panel. '' (e) Reference was made to the attempt on the part of the Employer to distinguish the Katsuno case on the basis that there was no evidence
in the case before us of a personal friendship between the interviewer and the candidate. The Union disagreed and stated that there was evidence of a personal friendship, as Mr. Thomas
and Ms. Anklesaria had been part of a car pool for a significant period of time. We were also asked to find significance in the fact that Mr. Thomas was. not called to rebut what was
said to be a prima facie case that had been made out that Ms. Anklesaria felt that her relationship with him was so close that she had to take the special or extra step of warning him
that they could not discuss the competition. "Why would it be necessary for Anklesaria to take
106 this s t e p unless she felt that the relationship could be preceived by an objective observer as being too close or too personal of a friendship and raise an apprehension of impropriety?
As well, the failure of Anklesaria to disclose her conduct, including her own concerns about the propriety of her relationship with Thomas, to other members of the interview panel is
an additional and significant piece of evidence that the Board should consider in determining whether there was an apprehension of bias. This does not require a finding that Anklesaria
acted in a malicious manner." (Emphasis in the written reply of the Union.) 1 2 . Consensus Scoring We were asked to find that the reference in the evidence of M s . Anklesaria that
M s . Linton also had some technical knowledge and seemed to have understood the questions and answers before the interview began, to be pure speculation, and the Union repeated its
reliance on its earlier position. 13. Review of Performance Appraisals and References (Page 21 of Employer's Written Submissions) (a) The Union repeated its position that M s . Anklesaria
had admitted, both in chief and on cross-examination, that she had not followed Ministry policy nor had she restricted herself to any
107 particular retention period when reviewing the performance appraisals. (b) The Union asked the Board to find as a fact that Ms. Anklesaria breached the Ministry policy of considering
performance appraisals for only three or five years because it was only when she learned of the fact that there was a Ministry policy that she endeavoured, in what was said to be a self-serving
manner, to restrict her evidence. What Ms. Anklesaria did was said to have affected the other panelists, as all of them relied on Ms. Anklesaria's summary of the performance appraisals.
Ms. Anklesaria had given little or no weight to the fact that Mr. Ford received a good-performance -appraisal when working as an SO2 in the SSD Branch, a fact which represented relevant
experience. Her omission affected all the members of the panel. 14. Reference Given for Mr.Thomas by Ms Whetstone (Page 22) (a) The previous position of the Union was repeated: That
Ms. Anklesaria had not disclosed the facts to the other members of the panel arising out of 'Ms. Whetstone and Mr. Ford having competed for an SO4 position. (b) Neither Ms. Ancevich
nor Ms. Wong had been given an opportunity to draw their own conclusions relating to the evidence concerning Ms. Whetstone or to make further inquiries.
108 (c) The Employer's admission that one of two possible scenarios: that Ms. Whetstone tried to hinder Ford by giving Thomas a good reference, was said to be significant as the failure
to disclose that possibility to the other members of the panel, or the failure of Ms. Anklesaria to consider it, raised an apprehension of bias or unfairness to an objective observer.
Ms. Wong had indicated that if she had known the surrounding circumstances, this might have affected her reliance on the Whetstone reference. (d) We were asked to reject the assertion
by the Employer, at p.22 of-its written submissions, that "in the absence of any evidence, this Union argument was not supported" as being incorrect. This was because ther was said to
be evidence that this Board ought to consider when making an objective assessment as to the fairness of the conduct of Ms. Anklesaria. 15. Performance Appraisals Not Re viewed by All
Panelists (a) The response of the Employer that any flaw would not necessarily have made any difference amounts to speculation and does not answer the concern of the Union: that when
grouped together all of the procedural flaws are evidence of an apprehension of bias.
109 16. The Law The Union submitted that "any flaw including a reasonable apprehension of bias or unfairness" could not be discounted by resorting to a mathematical formula. We were
asked not to ignore the fact that only Mr. Ford and Mr. Thomas scored a passing mark and that "picking and choosing various mathematical formulae does not nullify nor prevent the Board
from granting a remedy." "The threshold of the Board to intervene where there is demonstrated to be a reasonable apprehension of bias is not subject to a mathematical formula nor is
it proper to allege that although the Board finds bias and unfairness or capriciousness, the Board can then go on and determine that it would not have made any difference in the end.
The nature of this type of allegation, if proven on the balance of probabilities, is such that it cannot be 'reduced or explained away by simple mathematical comparisons of scores. Such
a comparison of scores must be viewed with some scepticism when procedural defects themselves may have caused the scores which are being compared to be flawed." 17. Negative Inferences
(a) The Union reiterated that it was not its position that a mere allegation of a flawed competition required the Employer to call every person that sat on the interview panel or who
might have had
110 some control over the competition. The Union once again referred to the authority cited at pp.52-56 of its written submissions. We were asked to find that if we reviewed only the
evidence which was properly before us, there was evidence with respect to the allegations by the Union which called for an answer and was not answered by the Employer. The Employer's
explanation for not having called Mr. Thomas is either that they chose not to do so, or that they did to need to do so, or the Union could have called him. The Union identified a flaw
in this argument because the Employer's witness (Ms. Anklesaria) on cross-examination, for the first time raised an assertion that a draft position specification was given to both Mr.
Thomas and Mr. Ford but Ms. Wong denied this, and Ms. Ancevich was not asked by the Employer, and the Employer did not introduce the document into evidence. It was submitted that the
most appropriate source of the information would have been Mr. Thomas. (b) The Union also relied on the Employer's failure to call Mr. Tremblay and took issue with the reasons, found
at p.18 of the Employer's written submissions, as to why Mr. Court-Hampton was not called: ... because he had no recollection of the negotiations which led to the selection of the panel."
The attempt on the part of the Employer to offer an explanation for the failure to call Mr. Court-Hampton was said to be improper, without exposing Mr. Court-Hampton to cross-examination.
111 (c) The Union relied on the fact that there were a number of other issues, besides the negotiations which led to the selection of the panel, that might have been commented on by
Mr. Court-Hampton, i.e. why this was listed as a "new position," allegations of bias, documents that he may have been able to produce to refresh his memory. 18. Remedv (Page 28 of the
Employer's Submissions) (a) The Union repeated its position with respect to remedy, stating that there was no evidence that Mr. Thomas would be bumped. " E. (1) Discussion This is one
in a series of many cases where Mr. Ford has grieved after an unsuccessful attempt to obtain a position in the SSD Branch a position he evidently has a strong need to obtain. Given the
significant number of times that he has applied for positions in the SSD Branch (19, the number of grievances he has filed upon being rejected (approximately 81, the other grievances
he has filed involving the SSD Branch, some of which were referred to in evidence, and his occasionally acrimonious interactions with some persons in the SSD Branch (as were disclosed
by the evidence), it is not surprising that he had little confidence in the ability of the representatives of the SSD Branch to carry out a competition
112 involving him in accordance with the requirements of the Board. In the circumstances, we would expect management in the SSD Branch to have been aware of the need not only to conduct
a fair competition, but to give the appearance of conducting a fair competition. The representatives of the Employer must have been aware, based on the history outlined above, that Mr.
Ford was unlikely to give them the benefit of the doubt in assessing whether, after losing again, that a competition panel had dealt with him fairly and in accordance with the requirements
established in the jurisprudence of the Board. ( 2 ) The evidence adduced was lengthy, complex and of a technical nature, and both counsel presented highly competent and sophisticated
written submissions which were of great use to the Board. ( 3 ) Initially submitting Ms. Anklesaria as an essential member of the competition panel and then appointing her as the chair
had considerable potential for creating problems. Mr. Ford would likely regard her as ill disposed to him based on at least one past competition. (4) If the Employer was at all sensitive
to the situation, its representatives would have communicated to the Union its inability to hold the competition as required by the Memorandum of Settlement at a date proximate to its
becoming aware of circumstances that
113 prevented it from doing so, without the need-for a letter threatening action from Union counsel. ( 5 ) Based on its past experience, the Employer should have insured that candidates
had reasonable information concerning the nature of the position at a reasonable time prior to the interviews being conducted, and be able to clearly demonstrate that it had done so.
Mr. Ford said he had never been furnished with such information, his only guide being the statements contained in the posting. If the specifications supposed to have been furnished to
Mr. Ford and Mr. Thomas had been given to them, it is surprising that there is no recollection of this fact from two of the three members of the panel who testified. We were asked to
find that Ms. Anklesaria had given this information to the candidates to be interviewed on the basis of her evidence given during cross-examination. Mr. Ford was firm in denying he had
any information other than the job posting. Once again, appearances are against the Employer. ( 6 ) The casual and sloppy way in which the review of performance appraisals and references
was carried out was regrettable. The other panelists should have been able to make up their own minds after reading the available documents. Some effort should have been made to restrict
the examination of performance appraisals to the allowed time frame. Also, information should have been conveyed to the panelists that Mr. Ford had grieved the appointment of M s . Whetstone.
114 (7) The above recitation deals with only some of the matters relating to the conduct of the competition that seemed likely to cause Mr. Ford to conclude that the competition had
not been properly carried out. (8) Even if we had found several serious defects in the competition process, as was the case in Bent (GSB #1733/86), ( B . Fisher) such as: consensus scoring,
improper weighing of scores, failure to check the references of the grievor, this would not necessarily lead to our ordering a rerun of the competition or in directing that the position
be given to Mr. Ford. In the Bent case, the Board stated, where the onus was placed on the union: From this it seems clear that the onus is on the Union to establish not only that the
defects existed but that had the defects not occurred, that the grievor would have got the position. Although it is not articulated in the Delisle decision, it seems appropriate that
the onus should simply be on the balance of probabilities. In other words, if the Union is able to show that there were procedural defects in the selection process then they must show
on the balance of probabilities that had those defects not occurred, the grievor would be found to be relatively equal. (9) For the reasons set out below, we are satisfied that the evidence,
on a balance of probabilities, demonstrates that the Employer has established that such flaws in the competition as were established would not have affected the result: see Vaillancourt,
GSB #1620/87 (Wilson) at p.7, and Peters, GSB #1423/90 (Kaplan) at pp.30-31, also applied in Mountain. Barrell, MacLellan, GSB #629/89 (Fisher
115 (10) We agree with the submission of counsel for the Employer: In the present case, Mr. Thomas won the competition by a substantial margin of 58 points ( 2 4 5 points to Mr. Ford's
1 8 7 ) . Some of the defects alleged by the Union, if substantiated, clearly could not displace this margin. For example, the total point difference between Mr. Thomas and Mr. Ford
on all of the disputed questions was only 27 points. Similarly, despite the Union's emphasis on the allegedly unfair access to the All-in-One course, only 3 questions concerned All-in-One
( # 2 1 , 2 2 , and 2 3 ) and the difference between Mr. Thomas and Mr. Ford was only 5 points. The fact that only Mrs. Anklesaria rather than all of the interviewers reviewed performance
appraisals, which the employer admits was a minor error, had no demonstrable impact on the outcome of the competition, since Mr. Thomas' performance appraisals were more positive than
Mr. Ford's. Similarly, the alleged failure to reflect the importance of communication skills in the allocation of points also could not have had any impact, since the interviewers all
found Mr. Thomas' communication skills to be superior to Mr. Ford's. E. (1) Summary of Findings In dealing with the various issues, the Board will be referring to evidence referred to
by counsel, as well as to evidence recorded in the notes of the members of the Board. 1. Re Objection Arising Out of Late Posting The evidence with respect to the late posting being
a result of their being insufficient monies to do so in time was hearsay. Mr. Court-Hampton could have given direct evidence on this matter but was not called. Our concern over the allegedly
late posting is affected by our reading of the Minutes of Settlement which does not require the posting to be in March 1990, as was frequently argued
116 by counsel for the Union, but "in or about March 1990." We believe that this is how Mr. Ford understood the Memorandum of Settlement. Given Mr. Ford's suspicions concerning the good
faith of the Employer, the Union waited until June 15, 1990 to take further action, and there was no indication of any complaint being made until that time. "About March of 1990" would
fairly allow the posting to take place within a time frame that would permit an April 1990 posting. Although it is clear that the position was not eliminated for lack of funding, there
was insufficient evidence to demonstrate more than sloppiness on the part of the Employer, and we are unable to interpret its actions as representing a manifestation of bad faith. There
was no attempt to undermine Ms. Anklesaria's reply in cross-examination that she disagreed with the suggestion that the posting had been delayed in order to shift employees between vacancies.
2 . Alleged Advantage to Mr. Thomas as a Result of Late Posting (a) We do not find any evidence to demonstrate that Mr. Thomas was improperly favoured in being permitted to gain experience
in the SSD Branch. As was noted in the Desi/Bousquet case, there must be some indication that the Employer was "acting in bad faith or in contravention of the collective agreement in
conferring some particular advantage on a candidate." In the circumstances, we are unable to find that Mr. Thomas' experience between May 1, 1990 and August of 1990 was so extensive
as to taint the results of the
117 competition. (We have noted that the wording of the Memorandum of Settlement allowed for some leaway in choosing the date for posting, and the Memorandum neither said that the posting
was to take place on March 1, 1990 or on any particular date in that month, but it was to take place "around March 1990.") (b) We also note that Mr. Thomas was working as an SO2 in the
SSD Branch to September of 1990 and not as an SO3 and there was an absence of evidence concerning what applicable knowledge he might have acquired as an SO2 that would have given him
an advantage in the competition. (c) We also note that Mr. Thomas had been in the SSD Branch for some time prior to the posting and was performing duties consistent with the functioning
of that Branch when compared with the TSB: programming as contrasted with maintenance of programs. There was also evidence that there had been many changes in the field of computer technology,
having special application to the activities conducted in the SSD Branch since Mr. Ford left in 1987. In the circumstances, it it not surprising that Mr. Thomas, with greater recent
involvement in that Branch, would have gained experience that could not be regarded as giving him an unfair advantage. 3. Influence on the Scoring of the Candidates of Mr. Thomas' Experienc
e in the SSD Branch from M ay 1990 to August 1990
118 (a) We are satisfied that Ms. Wong was confused during the course of cross-examination when she indicated that she thought that she had deducted points from Mr. Thomas and perhaps
other candidates. Based on her evidence in re-examination, we are satisfied that she had confused the competition with another SO3 competition between Mr. Ford and Alfred Cheung where
the memorandum of settlement that established that competition provided that the candidates' qualifications were to be assessed as of a certain date. The similarity between the Cheung
and Thomas competitions, the fact that they were proximate in time, and that the selection panels were the same, explains how Ms. Wong could have become confused. (b) The evidence of
Ms. Anklesaria and Ms. Ancevich satisfies us that no special allowances were made for the recent experience of Mr. Thomas or any other candidate and there was no discounting of scores.
4 . Access to All-In-One Course and Programming Codes (a) We are satisfied from Ms. Anklesaria's evidence that only employees of the SSD Branch were invited to the particular session
of the All-In-One course and that the reason given for this being the case (because the Branch paid for its own members to attend) is a sufficient explanation for what happened. We accept
that this case is distinguishable from Esmail, relied upon by the Union, because, in that case, there had been an arbitrary exclusion of the
119 grievor from a training course offered to others in her department. It is also significant that, unlike the case in Esmail, no one on the competition panel, had anything to do with
the decision as to which employees attended the All-In-One course. There was no evidence to show that Ms. Anklesaria, or any other members of the panel, had any input into that decision.
(b) We also accept Ms. Anklesaria's evidence that Mr. Ford could have taught himself about the All-In-One course using available library resources. Her evidence that this could be done
was not refuted. From the evidence, it appears that this is a widely used system with considerable available literature and Mr. Ford could have-asked his own manager in the TSB branch
to send him to such a course. Furthermore, Mr. Ford, in his examination in chief, acknowledged that he learned of the relevance of the All-In-One system for an incumbent in the position
from his reading of the posting which occured on July 12, 1990. He also acknowledged, in cross-examination, that it was not necessary to take a formal course of instruction in All-In-One
in order to learn it. (c) We also note that only one question in the competition (number 22) was clearly drawn from the course, which leads us to the conclusion that any advantage that
might have been enjoyed by Mr. Thomas was slight.
120 (d) Although Mr. Ford could not access the All-In-One software through use of its codes directly through his computer terminal, we are satisfied with Ms. Anklesaria's explanation
that Mr. Thomas was in the same position and had no greater access privileges to the All-In-One software than did Mr. Ford. We are also satisfied from the evidence that the All-In-One
system, and its associated software, was not a secret and reference manuals were readily available in the library for use by all employees in the workplace, including Mr. Ford. Mr. Ford
also acknowledged, during his crossexamination, that he would not feel prejudiced if he had been aware of the fact that none of the candidates had access to the Al-In-One codes. 5 .
Identity of the Vacancy Pos ted (a) We are satisfied with Ms. Anklesaria's explanation, which we found reasonable, that the change in technology and the needs of the Employer required
that the position be revised on an ongoing basis so that the position, when posted, was to fill the Employer's needs in the SSD Branch at the time of the competition. What was significant
was that the essential core skills, duties and responsibilities of the positions previously awarded to Ms. DiMitri and to Mr. Fortier remained the same, and that the position for which
Mr. Ford and Mr. Thomas were interviewed encompassed essentially the same duties that Ms. DiMitri and Mr. Fortier would . . .
121 have been expected to perform if they had remained in the position. (b) We do not believe that any witness was deliberately trying to mislead the Board, however we found the evidence
called by the Employer with respect to what, if any, position specifications had been given to Mr. Ford and Mr. Thomas to be confused, whereas Mr. Ford was clear in his recollection
that he had not been furnished with any position specification before or at the time of the interview. The evidence of Mr. Thomas in this regard would have been helpful, but he was not
called by the Employer. Notwithstanding this omission, we are satisfied that the posting contained sufficient information to enable Mr. Ford to be aware of the essential requirements
of the position. In addition, from the evidence it appears that Mr. Ford had applied on numerous occasions for similair positions in the SSD Branch which would have made him very familiar
with the essential core skills, duties and responsibilities associated with the position, which had not changed, and there was an insufficient basis for concluding that he was thereby
disadvantaged in the competition in any significant way. In the Mountain case, supra, the Board held that any defect in failing to furnish a position specification was cured because
the candidates had seen the position description in the job posting (at p.21, and was otherwise familiar with the requirements of the position. This was not a case where Mr. Ford was
unfamiliar with the requirements of the position he sought.
122 (c) There was evidence that on July 31, 1992, the Employer's counsel sent the draft position specification that the Board ordered produced on March 16, 1992, to Union counsel. The
only subsequent reference to this matter was made in the written submissions of the Union, at p.18. In the circumstances we did not find any obligation on the part of the Employer to
introduce the document into evidence, as argued by counsel for the Union. Because of our finding (in para. 5(b), above) it is unnecessary to deal with the significance of this fact.
6 . Undue Emphasis on Commun ication Skills (a) -We conclude that there was sufficient indication of the importance of communication skills, for the reasons outlined in the written submissions
of counsel for the Employer. (b) Based on the allocation of total marks, we also conclude that if more marks had been allotted to this factor in the competition, Mr. Thomas' margin of
superiority would have been greater, and the submission made by the Union does not affect the result. 7. Relevance of the Ouestions (a) We are satisfied from the evidence of Ms. Anklesaria
that the questions were relevant to the position to be filled. She considered the requirements of the position and consulted with
123 others before setting the questions. She testified, in chief that she consulted with James White, the Manager of the Systems Architecture Unit in the S.S.D. Branch, who was said
to have special knowledge in the area relevant to the position. She also had considerable experience in the subject area and would be aware of the nature of the relevant skills, abilities,
duties and responsibilities associated with the position. From the evidence, we are satisfied that the competition panel were aware of the facts relating to the nature of the position
and its duties and responsibilities, and the technical panelists would not have been at a disadvantage in determining the relevance of questions. (b) We accept Ms. Anklesaria's evidence
as to how each of the disputed questions related to the requirements of the position and her explanation as to how the questions were relevant because systems analysts are required to
have a good deal of the same knowledge base as systems managers to ensure that the systems design will function properly under user demands. We also accept her evidence that systems
analysts frequently direct systems managers to create special accounts and other devices in order to ensure the efficient functioning of the systems they design, which represents a sufficient
explanation as to why some of the questions might also relate to the duties of systems managers. (c) We are also satisfied that systems managers do not necessarily work at "different
levels" from systems analysts. We accept Ms.
124 Anklesaria's complaint that, from a technical point of view, many of the questions in this area asked of her by Union counsel made no sense. We are satified that she was technically
knowlegeable in the area with which the grievance was concerned and that neither 'she not counsel for the Union was trying to mislead the Board. If the Union wished to further challenge
her position in that regard, they could have called their own expert witness(es) to establish the points they were unable establish through the cross-examination of Ms. Anklesaria. (d)
We are satisfied from the evidence of sufficiency of the questions she testified Ms. Anklesaria that the about, including number 11, "row by row" processing, number 1 3 , (experience
with relational databases), and number 18 (INGRES storage structures), were relevant for the posted position. We also accept Ms. Wong's evidence that, on reviewing the questions, she
found them to be relevant to the position. Ms. Wong had the necessary technical knowledge and familiarity with the work of the SSD Branch to make such a judgment. (e) Although the Union
alleged that questions 21 to 23 were unfair because they dealt with the All-In-One system software, we are satisfied that Mr. Ford was not denied the opportunity to learn about that
system. We also accept Ms. Anklesaria's evidence that only question 22 was clearly drawn from the course which Mr. Thomas attended. We refer to the comment made above, that Mr. Ford
had
125 the opportunity to learn All-In-One on his own or to endeavor to obtain permission to attend a course from his own manager. (f) We also conclude that in four of the questions, whose
relevancy was disputed by Mr. Ford, his score was equal to or better than Mr. Thomas', and that in almost all of the others the margin was only one or two points. We are affected by
the fact that the total difference in scores for these questions was only 27 points, whereas Mr. Thomas's total margin of superiority over Mr. Ford was 58 points. 8. Weight Given to
the Grievor's Experience as an SO3 in the TSB or as an SO2 in the SSD Branch (a) We are satisfied from a review of all of the evidence that the fact that an employee is classified as
an SO3 does not mean that he/she is capable of fulfilling the duties and responsibilities of all other SO3 classified positions, or, if they are capable of doing so with respect to a
particular position, that they can do so up to the standard that they perform their current position. We are also satisfied that experience as an SO3 in one environment does not necessarily
qualify an employee to "transfer" to another in the way suggested by Union counsel.
126 (b) We note that Mr. Ford had never held the job in question (Systems Analyst), and we are satisfied that he never performed any substantially similar one. (c) We are satisfied that
Mr. Ford's primary experience in the maintenance of existing systems in the TSB did not necessarily translate into his being immediately qualified to perform all of the systems analyst's
functions in the SSD Branch associated with the posted position. (d) We are satisfied that it is one thing to be assigned to a position with a primary focus on maintaining software and
another to develop new systems. We are therefore not satisfied that this was merely a case where Mr. Ford was seeking a "lateral transfer." (e) We accept Ms. Anklesaria's characterization
of the core experience requirements for the posted position, and why a review of the experience of Mr. Ford and Mr. Thomas caused her to conclude that Mr. Thomas' experience in the SSD
Branch in the areas noted were stronger and more relevant than that of Mr. Ford in the TSB and when he was in the SSD Branch in 1986-7. (f) It is of significance that there are two important
areas associated with the position where Mr. Thomas' skill and knowlege appears to be significantly greater that of Mr. Ford: systems
127 analysis, design and development and experience with relational databases (theory and practice). (g) We are satisfied that Mr. Ford's work in the TSB for the two years preceding
the competition was significantly different from the work performed in the SSD Branch. We are also satisfied that the work that he performed as an SO2 in the SSD Branch on the YOA software
computer system, being the only systems development experience relied upon by the Union, was not of major significance in finding Mr. Ford qualified for the posted position. We conclude
that his estimate of the extent of his involvement in the the total YOA project was too high even though Mr. Brockington's estimate was too low. Nevertheless, we accept Mr. Brockington's
evidence relating to Mr. Ford's allegation that he had designed the entire "application software design" system for the YOA project. We find that Mr. Ford's involvement was substantially
less than he believed and that not only had Diana Avon worked on the application software during the same period as Mr. Ford was involved, but there was significance in the fact that
Mr. Ford's role on the YOA team had only a limited applicability to the disputed position. We note that Ms. Avon was the systems analyst on the project who had the primary responsibility
for analyzing user requirements and designing the necessary databases. We are satisfied that it was Ms. Avon and not Mr. Ford who was performing work similar to the disputed position.
We accept Mr. Brockington's evidence that the analysis of user requirements, being one of the skills required for
I,-128 the disputed position, had already been completed by Ms. Avon before Mr. Ford came to the project. We also accept Mr. Brockington's evidence that Mr. Ford, when he was working
on the YOA project, acted primarily as a programmer rather than as a systems analyst, the explanation being that he was translating Ms. Avon's design into computer code. (h) Accordingly,
we are unable to accept the Union's position that the Employer had failed to give sufficient weight to the experience of Mr. Ford whether at the TSB or during his secondment to the SSD
Branch, although, as has been noted above, and will be commented upon further, below, some aspects of Mr. Ford's abilities were not conveyed to the other members of the committee by
Ms. Anklesaria. While this was improper, we conclude that the weight of evidence was insuficient to pesuade us that, but for the irregularities, the result would have been different.
9. Bias (a) A good deal of time taken up with hearing evidence with respect to the subject of bias raised by the Union. The Board has recently dealt with the subject of bias in Sauve,
1695/91 (Gray). In that case, at p. 24, the Board referred to Esmail, supra, which was relied upon by the Union to support its position that bias or an appearance of bias should vitiate
the ultimate conclusion of the committee.
129 (b) In the Sauve case, the employer argued, at p. 2 4 , "that the actions of an employer are not to be judged by the same standard as quasi-judicial tribunals, citing the passage
from Re University of British Columbia and C.U.P.E.. Local 116 (1982, 5 L.A.C. (3d) 69 (Munroe) at pp. 73-4, which is quoted in Re Board of School Trustees of School D istrict No. 68
(Nanaimo) and C.U.P.E., Local 606 (1985, 19 L.A.C. (3d) 176 at pp. 184-5, which the Board regarded as being "instructive" : It has been held that judgments reached by employers pursuant
to provisions such as art. 10.02 must be unbiased: see, for example, Re U.A.W. and Kysor of Ridgetown Ltd. ( 1 9 6 7 ) , 18 L.A.C. 381 (Weiler) at p. 389. What does that mean? It cannot
have the same meaning in the industrial setting as it does in the adjudicative setting. Judges and arbitrators are required to come to a particular dispute enencumbered by prior knowledge
of the circumstances or of the strengths and weaknesses of the parties. If that test is not met, an argument of legal bias arises. But that degree of purity is impossible of realization
in the process of making a managerial decision as to who should be awarded a particular promotion. Managers know their employees. They know something about their training, talents, work
habits, leadership attributes etc. They are not thereby disqualified from making judgments affecting the careers of their employees. What is required is honest reflection, and honest
appraisal within the Paramenters of the collective agreement. That is more than an avoidance of complete dishonesty. It implies as well a genuine Preparedness to be influenced and persuaded
by the fa cts as they are revealed during the selection process -even though those facts may not buttress any preconceived notions. (emphasis added in Sauve) (c) The Board, in Sauve,
at p. 25, noted the reference by the Board in Esmail to the fact that two committee members, in the latter case, by electing to sit on the committee had "created an apprehension of bias,
in the sense of being under severe pressure to select employees who had received the training." After
/I 130 analyzing certain further statements of the Board at, pages 15, 19 and 20 of Esmail, the Board, in Sauve concluded, at p. 26: It does not appear that the Board in Esmail treated
the "apprehension of bias" to which it had referred as an independent basis for a finding that Article 4 . 3 of the collective agreement had been breached. As it noted, there were sufficient
grounds for such a finding without reference to that feature of the case. In the end, the Board was not content merely to find that the committee members would have been under pressure
to confirm their earlier judgment. It considered whether, having regard to its conduct, the committee appeared to have succumbed to such pressure in a way which vitiated their decision.
In essence, it was assessing whether there was "actual bias" of the sort described in the University of British Columbia award cited by the employer. (d) We find that Mr. Ford's initial
objection to all members of the panel had been waived with respect to Ms. Linton and Ms. Wong. We also find that his objection to Ms. Ancevich was not wellfounded as he admitted that
he had not been told that she would not be a full participant in the selection process. (e) Any objection that Mr. Ford might have had to Ms. Anklesaria being appointed to the competition
panel, based on information that he had or might be reasonably expected to have at the time of the execution of the Minutes of Settlement, should have been raised at that time, and we
accept the submission of counsel for the Employer that Mr. Ford's having failed to object at that time prevents him from doing so now. We accept the position of the Employer that if
Mr. Ford was dissatisfied with Ms. Anklesaria as a member of the panel mandated by the Employer, he need not have signed the memorandum but could have proceeded with his grievance. Mr.
Ford was very familiar with Ms. Anlesaria. In his evidence in chief, he
131 stated that she had been a member of five competition panels where he was a candidate. (f) Based on the cross-examination of Mr. Ford we are not satisfied that the Union has established
its allegation that Ms. Anklesaria had to be a member of the panel in order for the Employer to execute the Minutes of Settlement. In crossexamination Mr. Ford admitted that he was unable
to recall whether certain other persons had been offered by the Employer as alternatives to Ms. Anklesaria. We are satisfied that the Employer initially indicated that Ms. Anklesaria
was to be a member of the competition panel, and was not then anxious to see her replaced. However, at the hearing, we were of the view that it was Mr. Ford who, at some point, insisted
that Ms. Anklesaria remain as a member of the panel even though he was aware of her desire to resign if the Union was agreeable. (g) We also note that the Employer had offered to amend
the Memorandum of Settlement to remove Ms. Anklesaria from the selection panel "due to the possibility that Mr. Ford would, at some point in time, come to question the appropriateness
of [her] participation on the panel" (see Exhibit 5 4 , being a letter from Marcia Gottesman, then counsel to the Employer, to Scott Watson, counsel for the Union). Ms. Gottesman's offer
was rejected although it was stated that Mr. Ford had not waived any of his rights (Exhibit 5 5 ) . We are satisfied that it would be unfair, in
132 the circumstances, to hold that the process could be found to be flawed because of alleged bias on the part of Ms. Anklesaria, based on the facts as they existed at the time of the
execution of the Memorandum of Settlement. (h) There remains the issue of the alleged bias of Ms. Anklesaria in favour of Mr. Thomas which could not have been known to Mr. Ford prior
to the execution of the Minutes of Settlement. The Union relied on the fact that Ms. Anklesaria and Mr. Thomas had worked together, she had interviewed him for a previous position, they
had car pooled to work together, and Ms. Anklesaria had had supervisory responsibilities for him. (i) We were asked to note that Mr. Ford, according to Ms. Anklesaria, had previously
accused her of favouritism toward Mr. Thomas as a result of an SO2 competition where Mr. Thomas was the ' successful candidate. The Union and the Grievor signed the Memorandum of Settlement,
notwithstanding this fact, although they knew that Ms. Anklesaria would be appointed to the panel. (j) It is not unusual, especially in small departments, for members of the department
to be involved in competitions for positions within the department. We are unable to find from the relationship between Mr. Thomas and Ms. Anklesaria that theirs was other than a business
relationship, even though they had been members of the same car pool. It would, in a more perfect world,
133 be better if outside panelists could be in charge of the running of competitions, but on the facts of this case, we cannot reasonably find that there was bias on the part of Ms.
Anklesaria in favour of Mr. Thomas or against Mr. Ford. We also find that there was no evidence of any impropriety on her part as there was no advance disclosure of questions or coaching
and she did what she could do to avoid contact with Mr. Thomas once she became aware that he was an applicant. (k) We find, as in the Katsuno case, that the relationship between Mr.
Thomas and Ms. Anklesaria did not "materially [influence] the competition process." Also, unlike the Katsuno case, there was no evidence of other than a working relationship between
Ms. Anklesaria and Mr. Thomas. We regard the evidence that they had been part of the same car pool as insufficient to take their relationship beyond that of a working one. (1) It is
possible to see how Mr. Ford would regard the relationship between Ms. Anklesaria and Mr. Thomas as being too cozy and, in his circumstances, conclude that there would be an inevitable
tendency to favour Mr. Thomas. We would expect that employers would strive to avoid even an appearance of bias in cases such as this one. Nevertheless, on the facts before us, we cannot
find that the relationship between Mr. Thomas and M s . Anklesaria had any material influence on the result. On the evidence adduced,
134 we are unable to find that the decision to select Mr. Thomas was affected by bias as recognized by the Board in Sauve. (m) We agree with counsel for the Employer that there was no
evidence necessary from the Employer to refute adverse inferences with repect to bias for the reasons set out in his written argument. i o . c onsensus Scoring (a) We are satisfied from
the evidence of Ms. Anklesaria, Ms. Wong and Ms. Ancevich that they scored individually. (b) Although there is no doubt that Ms. Anklesaria was a dominant member on the panel because
of her technical knowledge about the requirements of the position, the evidence does not support a conclusion that the other members of the panel acted in accordance with her bidding.
There was no evidence to show that Ms. Anklesaria attempted, in any way, to influence the scoring of the other panel members. (c) We are satisfied that Ms. Wong was familiar with the
technical requirements of the position which enabled her to understand the questions and the answers, and we are satisfied that she did not permit herself to be influenced to act in
a way contrary to her responsibilities to behave autonomously. We are also satisfied,
135 from the evidence of M s . Anklesaria that Ms. Linton had some technical knowledge and there was no indication that she did not understand the questions and answers before the interview.
In the circumstances, the presence of a member without technical qualifications (Ms. Ancevich) does not affect the result. She was acknowledged by Mr. Ford to be on the panel more for
her expertise in the running of fair competitions. She had considerable experience in the running of competitions, and did not, under close cross-examination, find any substantial fault
in the way the tests were run and evaluated. (d) It is not unusual for a member of a panel involving a technical matter to be lacking in technical expertise. M s . Ancevich struck us
as being a highly intelligent person and was quite frank in acknowledging that she had no knowledge of computers but had been selected because of her experience with employment equity
matters, an aspect of her selection that was evidently supported by Mr. Ford. (e) Although it might have been better if the answers to the questions asked had been broken down so that
it would be clearer how marks were alloted for the components of the answers, we conclude that this did not significantly affect the ability of the panelists to grade the answers, nor
did it affect the validity of the result. If testing procedures in job competitions were
136 regarded as exercises requiring near perfection, very few grievances would fail. 11. R eview of Performance Appr aisals and References (a) There were a number of flaws in carrying
out this aspect of the competition. It is unfortunate that the employment file of the applicants was not reviewed by all of the panelists. It is also unfortunate that the panel was not
advised of the facts relating to Ms. Whetstone raised by the Union. As was noted in the MacLelland and DeGrand is cases, supra, all of the members of the committee should review the
personnel files of the applicants. There should also have been evaluations of Mr. Ford from his supervisors, which does not appear to have been the case. There were also flaws in the
way Mr. Ford's performance appraisals were dealt with: we are uncertain that Ms. Anklesaria restricted herself to examining the performance appraisals within the time limits set, and
she failed to disclose some favorable comment from Mr. Brockington with respect to Mr. Ford's ability to deal with end users (b) We have considered the extent to which the normal requirements
of conducting a competition were deviated from in the case before us and have concluded that the matters covered under this head did not have a material impact on the result. 12. Failure
to Call Mr. Thomas and Ms. Linton
137 A s the Union indicated that it did not wish to see a rerun of the competition but was only interested in how the competition was run, the most appropriate source of this information
would be from the members of the panel, and we conclude that it was not necessary to call all members of the panel to provide this evidence and no inference can be drawn from the failure
to call the fourth panelist Jean Linton, nor was it necessary to call Mr. Thomas. 13. Meaning of "Relatively Equal" (a) The margin in the case before us was 58 points, which was 24%
of Mr. Thomas's score (58/245) or 31% of Mr. Ford's (58/187). The cases have not established a precise threshold (there being an unofficial rule of 10% referred to in several cases such
as Nixon (supra). The figures before us appear to be considerably outside the zone of relative equality, and we are satisfied that Mr. Thomas was better qualified than Mr. Ford "by a
substantial and demonstrable margin." F. DECISION 1. For all of the above reasons, including our conclusion that any shortcoming in the conduct of the competition would not have affected
the result, the grievance is denied.
138 2 . We are aware of Mr. Ford's considerable frustration in his ongoing attempt to secure a position in the SSD Branch that would accord with his interests and career goals. While
we are satisfied that he is a person of intelligence and sincerity and possesses computer skills that enable him to carry out his duties with a high order of competence, the facts of
the case before us are such that no other conclusion could be arrived at. It was unfortunate for him that Mr. Thomas was also an applicant for the position. We were satisfied, on the
evidence, that Mr. Thomas was unusually gifted, and this was manifested in his score. His combination of experience and qualifications, coupled with his score, made it difficult to come
to any other decision than the one we have arrived at: that the deficiencies in the carrying out of the competition would not have altered the result. 3 . It also appears to us that
a person with Mr. Ford's evident abilities and burning desire to be assigned work characteristic of that performed in the S.S.D. Branch should soon be given a meaningful opportunity
to realize his ambition. Certainly, if he is denied that opportunity, and if future competitions for which he applies are carried out in a manner similair to the one before us, one way
or another the Employer will have Mr. Ford in its future. When over forty persons apply for a particular position, and only two receive a passing mark, one of them being Mr. Ford, there
is some indication that he is ready to assume and competently carry
139 out functions called for in the SSD Branch. This is clearly not a case of a marginal performer attempting to gain entry to a branch where he lacks the skill, ability and qualifications
to do so. Dated at Toronto this 21st day of June 1993. M. Gorsky -Vice Chairperson "I DISSENT" G. Majesky M e m b e r H. Knight -Member