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HomeMy WebLinkAbout1997-0900.Bechard.98-09-01EMPLOY& DE LA CGURONNE DE L’Oh’-iARK) COMMISSION DE RlkGLEMENT DES GRIEFS 180 DUNDAS STREET WES 7; SUITE 600, TORONTO ON M5G lZ8 TELEPHONE/7iLiPHONE : (416) 326-1388 180, RUE DUNDAS OUES T; BUREAU 800, TORONTO (OM h45G lZ8 FACSIMILE/T~tiCOPIE : (416) 326-1396 GSB # 0900/97 OLB030/97 . IN TEE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before BETWEEN THE GRIEVANCE SETTLEMENT BOARD OLBEU (Steve Bechard) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE M.V. Watters Vice-Chair FOR THE UNION J. Noble Counsel Ontario Liquor Boards Employees’ Union FOR THE EMPLOYER M. Smyth Counsel Genest Murray Desbrisay Lamek Banisters & Solicitors HEARING October 15, December 17, 1997; April 29, April 30, June 22, July 3, 1998 in London, Ontario -I- In this proceeding, the grievor claims that he should have been awarded the position of 'C' Store Manager in respect of Store #llO in Wallaceburg, Ontario pursuant to job posting #WR-43/96. The position was, instead, awarded to Mr. Gerald Sullo, a more junior employee. At the outset of the hearing, the parties filed the following . Agreed Statement of Facts: “1. 2. 3. 4. 5. 6. 7. On December 20, 1996 the LCBO posted for the position of rNC1@ Store Manager at Store #IlO in Wallaceburg. A copy of the posting is attached as Appendix 1. The posting had a closing date of January 14, 1997. The posting stipulated that qualified candidates would be selected in accordance with Article 21 of the collective agreement. A copy of the position description for '@C" Store Manager is attached as Appendix 2. A copy of the position description for the position of Customer Service Representative is attached as Appendix 3. A copy of the position description for Clerk Grade IV is attached as Appendix 4. All Clerk IV positions were eliminated in May, 1994. As a result of the posting, the LCBO received a number of applications from interested individuals. A copy of the list of the six most senior candidates is attached as Appendix 5. The six most senior candidates and their seniority dates were as follows: Barry Barnard - 02/18/74 Steve Bechard - 05/09/77 Gerald Sullo - 03/08/82 M.L. Thibert - 10/15/84 Ron Walker 08/28/88 Roger Lacey - 12/03/89 The LCBO confirmed that the three most senior candidates, Mr. Barnard, Mr. Bechaud and Mr. Sullo met the basic requirements and they were notified that they would be interviewed for the position. All three were classified as Customer Service Representatives. The three most senior candidates were interviewed on February 5, 1997. The Interview Panel consisted of 8. 9. 10. 11. 12. 13. 14. Mr. Jay Thanki, District Manager for Windsor, Mr. Don Thibodeau, District Manager for London and Ms. Patty Davis, Manager of an "A" store in London. Mr. Jay Thanki was the Chair of the Panel. The Panel advised the Grievor before his interview began that he had to score 60% or more to pass the interview. The candidate rating forms for the Grievor and Mr. Sullo are attached as Appendix 6. Attached as Appendix 7 is a summary of the scores of the candidates. Mr. Barnard notified Mr. Thanki following the interview that he wished to have his name removed from the list of candidates for the position. Attached as Appendix 8 is a copy of Mr. Barnard's request. Mr. Bechard was not offered the position. The position was offered to Mr. Gerry Sullo. Mr. Sullo's appointment became effective March 17, 1997. Mr. Bechard filed a grievance with respect to this matter, and the grievance was duly filed in accordance with the procedures set out in the collective agreement. Attached as Appendix 9 is a copy of the grievance. II (exhibit #4) A substantial amount of viva vote evidence was presented by the parties over the course of six (6) days of hearings. The grievor and Mr. Bill Randle gave evidence on behalf of the Union. Mr. Bob Sussex, Mr. Sullo and Mr. Jay Thanki presented evidence on behalf of the Employer. All of this evidence has been considered in the fashioning of this award. The grievor commenced work at the LCBO in May, 1977 as a Clerk 2. He became a Clerk 3 in 1978 and worked in such position till 1985. In the latter year, the grievor was promoted to a Clerk 4 job and remained in same until May, 1994, at which time all Clerk 4 positions were eliminated. Thereafter, he worked as a Customer Service Representative -3- but was paid at a red-circled Clerk 4 rate. All of these positions were in Store #llO. Mr. Randle He retired from for some twenty 1 was Manager of Store #llO in the period 1984 to 1989. that position in 1989 after having worked for the LCBO (20) years. As a 'Cl Store Manager, Mr. Randle was a member of the bargaining unit. Mr. Sussex was Manager of Store #llO from 1989 to January, 1997. His decision to transfer to the Blenheim Store led to the vacancy here being contested. Mr. Sussex has worked for the LCBO on a full-time basis since August, 1974. Like Mr. Randle, he was a member of the bargaining unit in the period he served as Manager of Store #llO. Mr. Sullo started working full-time at the LCBC in 1982. He worked at Store #llO as a Clerk 3 between 1984 and 1992. In 1992, Mr. Sullo was laid-off and subsequently bumped into a position in the Chatham Store. He was working there as a Customer Service Representative at the time of the instant posting. As stated above, Mr. Sullo was awarded the 'C' Store Manager position being contested in this case. As the incumbent, he was notified of his right to fully participate in the proceedings. Mr. Sullo attended some, but not all, of the hearings. His involvement was limited to acting as a witness for the Employer. Mr. Thanki has been the District Manager for the Windsor District since February, 1995. In this capacity, he supervises thirty-four (34) Stores in Southwestern Ontario, including Store #llO. The Manager of Store #llO reports directly to Mr. Thanki. Mr. Thanki's position includes responsibility for job postings. In this instance, he served as Chair of the selection panel. -I- The relevant provisions of the collective agreement read: 21.5(a) Where employees are being considered for promotion, seniority will be the determining factor provided the employee is qualified to perform the work. (cl Where it is decided that it is necessary to make a temporary appointment to fill a temporary vacancy, including summer stores, which will last five (5) s working days or more, or one day in the case of stores, the Employer shall appoint the most senior employee in the next lowest classification in the department, section or store involved, who is qualified and available to perform the work. 21.9(a) In the event an employee who has been promoted is unable to perform the requirements of the position in a satisfactory manner within a period not exceeding three (3) months from date of appointment, the employee shall be reclassified to the employee's previous classification and assigned to the step in the salary range attained immediately prior to promotion. In the period between 1984 and 1992, the full-time complement at Store #llO totalled three (3) employees. Both the grievor and Mr. Sullo worked at the Store during these years. As noted, Mr. Randle was the Manager between 1984 and 1989. He was replaced by Mr. Sussex at the time of his retirement. In 1992, the full-time complement was reduced to two (2) employees with the lay-off of Mr. Sullo. .Thereafter, the grievor and Mr. Sussex were the only full-time staff in the Store. This staffing level continued until the Fall of 1996, at which time a third full-time employee was added. Permanent part-time and casual employees were also utilized in Store #llO in the time frame material to this dispute. The job descriptions for the positions of Clerk Grade 4 and Customer Service Representative are appended to this award. As stated earlier, the grievor worked in these two (2) positions between 1985 and . ,/ \ .’ -5. 1997. A considerable amount of evidence was presented, some of it conflicting, with respect to the actual duties performed by the grievor in the aforementioned period. After reviewing all of this evidence, I conclude 'as follows: W I am satisfied that, throughout much of this period, the grievor a was actively involved in the preparation of various daily and monthly reports including the daily sales report; the petty cash report; the banking report; incident reports; the telephone recap report: the health and safety report: the consolidated sales report; the permit report; the refusal report; and the customer complaint report. Many, if not most, of these reports were completed by the grievor when he engaged in what was referred to as "office work". It is likely that both he and Mr. Sullo performed this type of work on a monthly rotational basis prior to the latter's layoff in 1992. Thereafter, the grievor assumed greater responsibility for such work given the reduction in the full-time complement. I was left with the distinct impression that Mr. Sussex verified the content of the reports for accuracy. Many of the above-mentioned reports, particularly the financial ones, initially involved calculating amounts, tracking of data, and logging of information onto ledger sheets through manual techniques. In 1991, however, the computer was introduced into the Store's operation. This made it much easier to complete some of the reports as the calculations, tracking and logging could then be done electronically. Indeed, many of the financial reports were generated directly from data -60 stored within the computer. This advance served to significantly reduce the time devoted to this function. In this regard, I was told that the Manager now spends only three (3) to four (4) hours per month in the preparation of these reports; (ii) I find that the grievor was directly involved in the preparation z of all Store #llO budgets in respect of fiscal years 1984-1985 to 1997- 1998. It was the thrust of the grievor's evidence that, with the exception of fiscal year 1997-1998, he was responsible for completing fifty percent (50%) of the budget package throughout the above-mentioned period. The grievor asserted that, generally, he would complete half of the necessary work and that the remaining half would be done by the Manager, be it Mr. Randle or Mr. Sussex. I am inclined to slightly discount his estimated involvement as it is clear that Mr. Sullo was also involved in the budget process prior to his departure from Store #llO in 1992. Mr. Randle testified that the grievor was "very much involvedW in budget related work while he served as Manager. Mr. Sussex stated that the twenty-six (26) budget accounts were divided between himself, the grievor and Mr. Sullo between 1989 and 1992. Thereafter, these accounts were divided between himself and the grievor. I accept Mr. Sussexls evidence that, as Manager, he was ultimately responsible for the budget figures generated by the grievor for the accounts assigned. I further accept that Mr. Sussex may have reserved to himself that important portion of the budget relating to salaries. I, nevertheless, consider the grievor's experience with respect to budget preparation as significant both in terms of the extent of the work and the long period \ . _ - - - - 7 - over which it was performed. There was a conflict in the evidence with respect to the preparation of the 1997-1998 budget. The grievor maintained that he completed the entire package, including the salary component, as Mr. Sussex was expecting to be transferred to another Store. The grievor I recalled speaking to Mr. Thanki on issues related to budgeted wages. Mr. Sussex testified that he completed the salary portion of the budget in October or November, 1996 and that the other accounts were completed by the grievor. Mr. Thanki had a similar recollection. Ultimately, I accept that Mr. Sussex may have initially submitted a budget for salaries. It is clear, however, that the grievor completed the budget for all of the other accounts and that, in so doing, he may have been required to address salary related issues such as full-time complement. In the final analysis, I have not been persuaded that this conflict is material because notwithstanding the existence of same it is apparent the grievor was called upon to devote considerable effort towards completion of the 1997-1998 budget. I note, in this regard, that much of his work would have occurred following Mr. Sussexls departure and in the period during which he served as Acting Manager of Store #llO of which more is said below. As was the case with the preparation of reports, work on the budget was simplified after the introduction of the computer at Store #llO. Following such introduction in 1991, the computer would generate a projected budget based on data from prior years. As a consequence, the process became more of a checking and verification exercise. ' .' \ Progressively less input was required by the employees in the Store. -80 Mr. Sussex could not recall ever having to correct work performed by the grievor on the various budgets: (iii) The grievor attended Manager's meetings during the period that Mr. Randle was Manager of Store #llO. These meetings, which were held at least six (6) times per year, focused on issues such as procedures, I budgets and scheduling. The grievor also attended a Manager's seminar at Kempenfelt Day. These attendances were all at Mr. Randle's request. On the evidence before me, it seems likely that Mr. Sullo also went to certain budget and Manager's meetings in this period, although not as frequently as did the grievor. The grievor did not, generally, attend these types of meetings during the period Mr. Sussex was Manager. I was told that Mr. Sussex personally attended at such meetings; (iv) I have been persuaded that the grievor developed considerable experience in scheduling over the course of his employment at Store #llO. It was agreed, in substance, that he prepared the four (4) week schedule for full-time, part-time and casual staff from 1992 till 1997 when the task was assumed by Mr. Sullo as Manager. Mr. Sussex insisted that he would check the schedule to ensure that it was done properly and in accordance with the requirements of the collective agreement. Copies of schedules prepared by the grievor in respect of the period January, 1996 to March, 1997 were filed as exhibit #5. In a similar vein, the grievor was also responsible, in part, for the electronic submission of time and attendance data to the Payroll Department in the period 1992 to 1997. The grievor testified that he and Mr. Sussex rotated this responsibility on a weekly basis. Mr. .' ., Sussex stated that he would perform the task if in the Store and that, . .- - - -- - - 9 - otherwise, the person in the office would do it. I find that little turns on this apparent discrepancy. Ultimately, I am satisfied that the grievor regularly performed this work on the computer while engaged in what was referred to as "office work". The grievor testified that the transmission function was taken over by Mr. Sullo when he became Manager . in March, 1997; (VI On the evidence, I am satisfied that the grievor developed significant experience in assessing inventory and determining the extent of stock to be ordered. This process was done manually prior to the introduction of the computer in 1991. This required a physical check of the warehouse each week to compare inventory to projected needs. This projection was based, in part, on a formula involving an analysis of sales over the prior three (3) month period and over the identical monthly period in the proceeding year. Mr. Sussex, generally, agreed that the grievor was responsible for approximately one-third (1/3rd) of the stock in the period prior to the introduction of the computer. Mr. Sussex asserted that he and Mr. Sullo were also each responsible for assessing about one-third (1/3rd) of the total stock. He stated that the three (3) employees would check each other's work prior to any transmission of an order. I accept that the task of ordering stock became much easier and less time consuming after the introduction of the computer. Simply put, the computer would establish a target order premised on sales history and cases on hand. Visits to the warehouse were no longer necessary. Instead, the employee involved would check the suggested computer order ,i for any discrepancies. In such event, 't .: or for other purposes, the _ - - 10 - computer generated figure could be BVoverriddenll. After assessing all of the evidence, I am satisfied that the grievor continued to monitor stock and determine appropriate orders in this latter period. I am inclined to accept'his evidence that he was responsible for up to one-half (l/2) of the stock in the period following Mr. Sullo's layoff. Put another . wayI I find that the grievor would determine through the computer the extent of stock to be ordered for his share of the product lines. Additionally, I find that the grievor was authorized to override a computer target, if merited, and to place an ultimate order. I have no doubt, however, that this process was closely monitored by Mr. Sussex. The evidence discloses that the grievor was also responsible for certain other duties relating to stock. More particularly, he would ensure the receipt of display material from the London Warehouse and would log in a record of any defective or broken stock; (vi) On the facts before me, I conclude that the grievor also had a shared responsibility with respect to the ordering of supplies for Store #llO in the period 1992 to 1997. More specifically, I am satisfied that both he and Mr. Sussex equally shared this task which involved the taking of inventory and the completion and submission of purchase orders to Head Office. If the Supply Department at Head Office was unable to supply the items needed, the grievor would proceed to purchase same in the local community. The grievor testified that this responsibility was assumed by Mr. Sullo in March, 1997; (vii) The position description for Liquor Store Clerk Grade 4 provides as follows: I I . - 11 - "PURPOSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Acts as Assistant Manager in VIC@q Stores. te % of tti . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Assuming responsibility for store 5% operations in the absence of the Manager or Assistant Manager which includes: - key store functions: - supervision of staff: - customer complaints. II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..**........................ (exhibit #4, Appendix #4) It is abundantly clear that the grievor, while working- as a Clerk 4, acted as the Assistant Manager of Store #llO in the absence of both Mr. Randle and Mr. Sussex. He acted in this capacity in the following circumstances: while they were off on vacation or their regular day off; while they were ill and away from work; and while working certain extended hours, in their absence, on Fridays. In this regard, Mr. Randle testified that the grievor acted as Manager "the majority of times" in the five (5) year period he was Manager of the Store. On this point he stated: "1 never designated. I assumed it was always Steve. When I wasn't at the Store, Steve had the keys. Steve knew the procedure; he was the Clerk 4 and the most senior person next to myself." Mr. Randle added that when the grievor "ran the StoreI', he rated his performance as "very satisfactory, no problem". Indeed, he asserted that the grievor was ~labsolutelyl* qualified to be Manager of Store #llO as far back as 1989. Mr. Sussex testified that in his absence, he "went ,. to the next senior person in the Store". He agreed that in the period '< : - 12 - 1989 to 1992, the grievor acted as Manager more frequently than Mr. SUllO, and that in the five (5) year period thereafter, the grievor acted in this role more often than the next senior person. On the evidence,' it would appear that prior to 1992, Mr. Sullo only acted as Manager when both the Manager and the grievor were absent from the a Store. It was not disputed that the grievor continued to serve as Acting Manager in the three (3) year period during which he was classified as a Customer Service Representative; (viii) The evidence shows that the grievor acted as Manager of Store #llO between January 15 and March 15, 1997. This was the period subsequent to Mr. Sussex's departure and prior to the arrival of Mr. Sullo as Manager. The grievor testified that, in this period, he was totally responsible, inter alia, for the ordering of stock and supplies, the completion of all reports, and the compilation and transmission of time and attendance data. The witnesses called by the Employer did not express any concerns as to how the grievor performed in this two (2) month period. A series of performance appraisals of the grievor were filed as exhibit #7. These may be summarized as follows: (i) the performance appraisal for the period June, 1995 to June 1996 gave the grievor an overall performance rating of '121W. This rating fell between "outstandingn and "meets requirements". The grievor met or exceeded requirements in all competency areas. Mr. Sussex made the following comment in the appraisal: "Steve is a valuable employee. He assists in all aspects of the Store. I feel confident customers are well looked after in my absence". The performance appraisal was signed by both Mr. Sussex and Mr. Thanki; (ii) the performance appraisal for the period June, 1994 to June, 1995 also gave the grievor an overall performance rating of "2". This rating similarly fell between .- - 13 - (iii) "outstandingN and "meets requirements". The grievor again met or exceeded requirements in all competency areas. Mr. Sussex made the following comment in the appraisal: NSteve continues to be a valuable asset to the Store. He runs the Store effectively in my absence". The performance appraisal was signed by both Mr. Sussex and Mr. Thanki; the performance appraisal for the period June, 1993 to June, 1994 gave the grievor an overall performance rating of ,1211. This equated to Habove average performanceN. Mr. Sussex made the following comment under the heading of "Strengths@ on page two (2) of the appraisal form: "Steve is helpful with our customers and can run the Store in my absence". The performance appraisal was signed by Mr. Sussex and Ms. Ursula Harfman, the prior District Manager; (iv) the performance appraisal for the period March, 1992 to June, 1993 gave the grievor an overall performance rating of N211 which equated to "above average performance". Mr. Sussex made the following comment under the heading of "StrengthstV on page two (2) of the appraisal form: "Steve continues to do a good job looking after the Store in my absence". The performance appraisal was signed by both Mr..Sussex and Ms. Harfman. Performance appraisals in respect of Mr. Sullo were filed as Exhibits #9, #12 and #13. These referenced his work at the Wallaceburg and Chatham Stores. They may be summarized as follows: 0) the performance appraisal for the period February, 1991 to February, 1992 gave Mr. Sullo an overall performance rating of lt2". This rating fell between Mexceptional performance" and "consistently meets job requirements". Mr. Sussex made the following comment under the heading of "Strengths" on page two (2) of the appraisal form: NJerry is a self-motivator. He never has to be told to do a task. He just does it. Jerry would make an excellent Mgr." The performance appraisal was signed by Mr. Sussex and Ms. Harfman; (ii) the performance appraisal for the period February, 1993 to February, 1994 gave Mr. Sullo an overall performance rating of n2". This rating also fell between "exceptional performance" and t'consistently meets job requirements". The comments found throughout the appraisal, which were made by the Manager of the Chatham Store, are all positive in nature; - 14 - (iii) the performance appraisal for the period 1995 to 1996 gave Mr. Sullo an overall performance rating of "2". This rating fell between wOutstandingm and "Meets Requirements". The appraisal, which was prepared by the Manager of the Chatham Store, indicates that Mr. Sullo met or exceeded requirements in all competency areas. He received an assessment of "outstanding II for his work in respect of both customer service and stock handling. The instant posting dated December 20, 1996 for a 'Cl Store Manager at Store #llO in Wallaceburg reads, in part: II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Under the general supervision of the District Manager, the Store Manager assumes complete responsibility and accountability for the store by: planning, co-ordinating, scheduling and administering key store functions such as customer service, stock layout, storage and maintenance, security, management reporting, and cash handling and banking; hiring, training, scheduling, evaluating and disciplining store staff: performing administrative functions such as budget preparation; processing licensee, agency and special permit applications;,and ensuring adherence to policies and procedures. QUALIFICATIONS: The successful candidate will have developed the knowledge, skills and ability to perform at the.ttCtt Store Manager level, through a combination of progressive experience in store operations and relevant educational programs in key areas such as Customer Service, Social Responsibility and Human Resources Management. You must also demonstrate an awareness of LCBO strategies including Customer Service Standards of Excellence, Health 61 Safety/WCB environmental issues, and Employment Equity. You should possess good leadership, interpersonal and communication skills, and have completed Product Knowledge Level I and II and working towards level III. The following are also critical areas for candidate assessment: - Merchandising - Inventory Management - Business Management, eg. budget - Facilities Management, eg. repairs, maintenance - Security The LCBO is an Equal Opportunity Employer. PLEASE NOTE: - Candidate qualifications will be determined through an interview process and must meet the following basic requirements in order to be called for an interview: a) past . - 15 - satisfactory work performance; b) review of discipline and attendance records: c) French Language Services requirements, where applicable. 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (exhibit #4, Appendix #l) The closing date for the posting was January 14, 1997. The grievor . submitted his application to the Western Regional Office, Human Resources Services, in London, Ontario on December 20, 1996. At the time of this submission, he had completed the Product Knowledge Level I and II courses referenced in the posting. The position description for 'Cl Store Manager is appended to this award. The document outlines a number of duties and responsibilities for the position under the following headings: Customer Service: Social Responsibility: Human Resource Management: Merchandising: Inventory Management: Business Management; Facilities Management: and Security. These duties and responsibilities were reviewed with the grievor during the course of his evidence. Simply stated, the grievor claimed that he could perform effectively in the position sought given the breadth and extent of his prior experience at Store #llO. Prior to the summer of 1996, promotion to the position of 'Cl Store Manager was based strictly on seniority in the absence of any significant performance, discipline or attendance issues. Mr. Thanki indicated that under this process, the senior candidate would be selected as long as their performance appraisals were satisfactory. The procedures employed to implement this process was filed as ‘exhibit #18. The procedure required the Division/Department Head, or District Manager, to "review the past performance of applicants and select the - 16 - senior qualified candidate". The process did not contemplate, or provide for, an interview with the applicant. The above-described process was changed in mid-1996. The change was documented in a memo dated July 22, 1996 which was circulated to all employees. The memo reads, in part: . II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Please be advised that the selection process for ICI & IDI Store Managers and 'A' & IB' Assistant Store Managers has been revised for The 1. 2. 3. future postings. revisions are as follows: Staffing will continue to take place per the provisions of Article 21.5(a) of the Collective Agreement. A formal interview will be added to the process to determine the qualifications of the most senior candidate. In order to be eligible for an interview, the most senior candidates must meet the basic requirements, namely, demonstrated retail experience, fully satisfactory work performance, satisfactory attendance, and no recent discipline. The revised process, inclusive of the interview, will determine whether the candidate is qualified to meet the requirements of the position. II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (exhibit #ll) As stated in paragraph #l, a formal interview was added to the process "to determine the qualifications of the most senior candidate". Mr. Thanki testified that after this change, "C and D positions were based on interviews with a sixty percent (60%) qualification". When asked by counsel for the Employer to clarify this statement, Mr. Thanki replied: "If the most senior candidate receives sixty percent (60%) on the interview they would be deemed to be qualified". I was advised that the revised process was first used in respect of the posting now before me. - 17 - I note that the posting references the fact an interview would be held. More specifically, it states that "candidate qualifications will be determined through an interview process..." Mr. Thanki described the pre-screening process used in this instance. Initially, the Human Resources Department sent a form out to a the District Managers listing the candidates. The District Managers, or their staff, were then required to document appraisal ratings on the form and to note whether there existed any significant discipline or attendance issues, in respect of the applicants from their District. This information was obtained in Mr. Thanki's District by Ms. Carol Hanson, the District Clerk. I was led to believe that she secured the required information through communications with the Manager's of applicants from within the District. The form containing all of the data was then returned to the Human Resources Department for compilation and assessment. The form containing data relating to the grievor was not filed in this proceeding as the Employer was unable to locate same. Mr. Thanki initially testified that his Clerk would only note the rating on the most current performance appraisal. He later stated that he was unsure how many appraisals would be canvassed during the screening process. On receipt of the forms from the Districts, the Human Resources Department compiled a list of the six (6) most senior applicants without any discipline, attendance or performance problems. It then determined that the three (3) most senior applicants meeting the basic requirements for the position in question would be interviewed, namely Mr. Barnard, the grievor and Mr. Sullo. These three (3) individuals were * - \- - 18 - subsequently interviewed on February 5, 1997 by a panel consisting of Mr. Thanki; Mr. Don Thibodeau, District Manager for London; and Ms. Patty Davis, Manager of an 'A1 Store in London. Mr. Thanki acted as Chair of 'the panel. He was the only panel member called on to testify in this case. Mr. Thanki was familiar with the grievor and Mr. Sullo as I they worked in his District. He did not know Mr. Barnard who was from another District. Each of the three (3) interviews lasted for approximately forty- five (45) minutes. At the outset, each candidate was told,of the format that the interview would take. They were specifically informed that the most senior candidate achieving sixty percent (60%) would be awarded the position. During their respective interviews, the candidates were each asked the same five (5) questions. These questions, which were prepared in advance by the Human Resources Department, were contained in a five (5) page Candidate Rating Form. The questions addressed the following areas: Social Responsibility; Customer Service and Merchandising; Human Resource Management: Store Security: and Business Management. I am satisfied that the questions were all reasonably related to the duties and responsibilities of the posted position. The Union did not seriously challenge the appropriateness of the questions at the hearing. I elect not to reproduce the full text of each question so as not to compromise any future selection process. The Candidate Rating Form had the required answers for each question together with a spot for the panelist to tick off when one (1) or more of these answers were given. Mr. Thanki stated that it was possible for candidates to get credit for relevant answers not listed on - 19 - the form. A scoring direction was provided for each question. Each panelist separately rated each of the three (3) candidates. Their forms for the grievor and Mr. Sullo were filed as exhibit #4, Appendices #6(a) (b) cc) (d) (e) and (f) . Mr. Thanki testified that the panelists scored each candidate immediately after an answer was given. At the end of each interview, the panel totalled their respective scores and discussed any discrepancies. Mr. Thanki, when asked, defined a discrepancy as Wa substantial difference in the marks assigned for any question". He initially advised that scoring would be changed Itif one (1) panel member didn't hear what others did". In cross-examination, he was unable to recall if any scores were in fact changed and then replied that he did not think so. Mr. Thanki asserted that each person did their own scoring. He denied the suggestion that the panel had engaged in consensus scoring and maintained that the closeness of their individual totals was mere coincidence. The scores, tabulated after the interviews, were as follows: . . P= DaviS J. Thankl D. Thlbodeau Total Total Pouts % F. J%lInsd 30 30.5 32 92.5 150 62% S. Bedxxd 25.5 26 26 77.5 150 52% G. SUIJQ 31 30 29 90 150 60% It is clear on the face of the tabulation that the percentage scores of Mr. Barnard and the grievor were "rounded" up to the next highest whole number. A review of Ms. Davis' rating form in respect of Mr. Sullo discloses that he scored 30.5 rather than 31. His total mark, accordingly, should have been recorded as 89.5 instead of 90. As a L . . - - 20 - percentage of the total possible mark this would have led to an overall percentage score of 59.6% rather than the 60% shown above. Counsel for the Employer suggested that this simply amounted to a "rounding up" as occurred in the case of the other two (2) candidates. Counsel for the Union argued that it was somewhat suspicious as the rounding up would . not have been apparent from a mere review of the tabulation sheet. She emphasized that, without such rounding up, Mr. Sullo would not have attained the required percentage established by the LCBO. As noted in the Agreed Statement of Facts, Mr. Barnard notified Mr. Thanki following the interview process that he wished to have his name removed from the list of candidates for the position. The position was, therefore, offered and awarded to Mr. Sullo as the next most senior person scoring sixty percent (60%). The grievor was not offered the position as he scored only fifty-two percent (52%) in the interview. Mr. Thanki testified that the grievor's score, being less than sixty percent (60%), led the panel to conclude he was not qualified for the position. He reiterated that a candidate failing to achieve sixty percent (60%) in the interview was "deemed not to be qualified". Mr. Thanki expressed the opinion that the interview was Ita good indicator" as to whether a candidate was qualified or not, as it presented them with an opportunity to "talk about their experience". The section panel did not review performance appraisals for any of the applicants as part of its process. While Mr. Thanki knew two (2) of the three (3) persons interviewed, no evidence was presented with respect to what Ms. Davis or Mr. Thibodeau may have known about the prior experience and level of performance of the applicants. The . . - 21 - Employer's policy relating to Performance Appraisal was filed as exhibit #15. It reads, in part: "SUMMARY Continuing evaluation of performance is fundamental in meeting LCBO objectives and in assisting employees to achieve their career development goals. Performance appraisal is a measure of the employee's I performance and.potential against clearly defined goals and objectives. Objectives The objectives of performance appraisal are to - establish specific and realistic performance standards based on the employee's job description - measure and document actual work performance against established goals as a basis for merit increases/promotions - enable employees to participate in setting their performance goals and objectives - obtain information on each employee's interests and capabilities's0 that employees can be matched against specific job requirements and opportunities - assist employees in their career development by providing feedback and by identifying areas for performance improvement , - encourage employees to bring to the supervisor's attention any problems or conflicts so that they may be resolved. II Mr. Thanki testified that he was aware the grievor had acted as Manager of Store #llO following Mr. Sussexls relocation to Blenheim. It was his view that this experience did not qualify the grievor for the job. When asked for the basis for this opinion, Mr. Thanki stated the following: "As an Acting, you are basically just doing maintenance. The Manager leaves things in place and the acting person carries out directions already established". In cross-examination, Mr. Thanki acknowledged that the grievor ran the Store in a satisfactory manner - 22 - between January and March, 1997. Mr. Thanki similarly testified that acting as Manager in the Manager's absence did not necessarily equip or qualify the grievor for the posted position. He stated that "usually the most senior employee working in the Store is appointed Acting Manager". In cross- . examination, Mr. Thanki's attention was drawn to the Employer's policy on Acting Assignments. The policy, filed as exhibit #17, includes the following statement: "An acting assignment is made when a qualified employee is designated to perform the full duties of another position on an interim basis". Mr. Thanki agreed that pursuant thereto an employee appointed on an acting basis ought to be qualified. He questioned, however, whether that was always the case. Mr. Thanki stated, in this regard, that "there is a feeling out there at the Store Level that the most senior candidate should get it". He further suggested that many Managers simply appoint the most senior person so as to avoid grievances. Mr. Thanki conceded that he was not suggesting this had occurred at Store #llO in respect of the grievor acting as Manager. To repeat, article 21.5(a) provides as follows: Where employees are being considered for promotion, seniority will be the determining factor provided the employee is qualified to perform the work. This article clearly contemplates that the promotion should be awarded to the senior qualified candidate. In this sense, it constitutes what is commonly referred to as a sufficient, or threshold, ability clause. . The following excerpt from wan T&our Arbitration (3rd. ed), Brown and Beatty at page 6-56 describes ,how such a clause is normally interpreted and applied: . - 23 - "If the collective agreement contains what is known as a 'threshold' or 'sufficient ability' clause, which purports to award a job to the senior employee having the requisite ability to perform it, the senior employee claiming the position will be entitled to it if he affirmatively proves tha,t he can perform the job, even though he might not be able to perform it as well as a less senior employee. By this type of clause, the evaluation that is made of the grievor's qualifications is against the legitimate requirements of the job. The senior employee will not be required to prove, nor will the employer be entitled to insist, that he could perform the job to perfection. Rather, reasonable ability to perform the required task is the bench mark for assessing the ability and qualifications of such a person". . This approach was accepted in Be Scaorouqb C-al Hos& And ovees. J,ocal 1487 (1979), 23 L.A.C. (2d) 190 (Swan). The award in that case reads as follows with respect to onus of proof under a sufficient ability clause: II . . . ..The onus of proof in these cases is on the grievor, although once a grievor has made out a case that he does possess the requisite skill and ability for the job, the onus shifts to the employer to come forward and establish the grounds for its opinion:............................." (Page 196) Article 21.5(a), as worded in the instant collective agreement, has been interpreted in the following decisions of the Grievance Settlement Board: RFXJ (D-Evans) and TCBQ, 1586, 1587/94 (Dissanayake); U (H-e??) and JCBQ, 1049/89 (WatterS); OLBEUlCoverl . 0397/89 (Verity); QIBEU (Colw) and , 1738/89 (Barrett); OLBEU . . CWllW TICBQ, 251/84 (Brandt). These awards, in general, confirm that article 21.5(a) is a sufficient ability clause pursuant to which the most senior candidate is entitled to the position if qualified. They also recognize that the article does not contemplate a competition between candidates as would be the case under a relative I c ‘. - 24 - ability clause. The above authorities clearly establish that this grievor would be entitled to the posted position if he can demonstrate he was qualified at the time of the posting to perform the work of a 'Cl Store Manager. It does not matter that a more junior candidate, such as Mr. Sullo, might be superior in the sense she/he could perform the job more effectively. Simply put, if the grievor as the more senior of the two (2) employees was qualified, he is entitled to the job. This analysis leads directly to two (2) threshold questions. Firstly, was the grievor qualified to perform the duties of the posted position and, secondly, did the Employer structure and apply an assessment process capable of supporting a decision that he did not possess the requisite qualifications. Not surprisingly, the parties advanced conflicting arguments on these issues. It was the Union's position that the grievor was qualified, at the time of the posting, to perform the duties of a 'Cl Store Manager. Counsel focused on three (3) aspects of the evidence in advancing this submission. Firstly, she noted that the grievor worked as a Clerk 4 at Store #llO for a nine (9) year period between 1985 and 1994. Counsel emphasized that in this position the grievor was called upon to act as Assistant Manager and to engage in duties .involving a significant measure of responsibility and independence. Counsel asserted there was no evidence before me that the grievor performed his duties as a Clerk 4 in other than a satisfactory manner. Secondly, reference was made to the grievor's experience with respect to scheduling, budget preparation, report preparation, related office work, and ordering of stock and - 25 - supplies. Counsel stressed the fact that this work was performed right up to the time of the posting and that it was not restricted to the time period during which the grievor was a Clerk 4. She suggested that this type of work would serve as a valuable foundation for someone intent on promotion to a ICI Store Manager position. Counsel, again, repeated . that the Employer had not presented any evidence to suggest the grievor had performed this work in a less than satisfactory fashion. Lastly, considerable emphasis was placed on the fact that the grievor acted as Manager, in the absence of either Mr. Randle or Mr. Sussex, more than any other employee in Store #llO. Counsel referred to article 21.5(c) of the collective agreement and to LCBO policy on acting assignments, both of which speak to the need to be qualified for such work. She submitted, in substance, that the grievor's experience with respect to filling-in as Manager demonstrated he was qualified for the posted position. Counsel suggested that the Managers would not have appointed the grievor to act in this role if he was not qualified to assume the higher level of responsibility. From the perspective of the Union, the grievor's qualifications and suitability for the position was further evidenced by his favourable performance appraisals over a lengthy period of time and by his ability to effectively act as Manager in the two (2) month period following the departure of Mr. Sussex. The Union also challenged the process for selection used by the Employer in respect of the instant posting. Reference was made to the change effected in mid-1996 which resulted in the addition of an interview component to this process. While the Union did not object to the use of an interview per se, counsel submitted that the way it was - 26 - employed here turned the selection into one focused on the qualifications of further argued, in this regard, that grievor's ability and qualifications on in so doing, ignored his actual work s a competitive process instead of the senior applicant. Counsel the Employer solely gauged the the basis of the interview and, experience at Store #llO. She stressed that the selection panel did not review or consider his performance appraisals and his prior work record, including the acting assignments. From the perspective of the Union, this information was used exclusively for pre-screening purposes on the part of Human Resources and was not, in any meaningful way, factored into the panel's decision making process, as required by article 21.5(a). It was the Union's position that the Employer, in relying on the interview result as the sole determinant of qualifications, ignored material and relevant evidence which established the grievor was qualified for the position in issue. This was described as a "fatal flaw" in the process. Counsel submitted that the performance appraisals should not be discounted simply because they were prepared by other members of the bargaining unit. She maintained that 'Cl Store Managers are fully responsible for making this assessment and that, in any event, the appraisals in this case were reviewed and signed by the District Manager. Counsel for the Union also argued that the scoring of the interview was questionable, arbitrary and unreliable. She noted the following from a review of the rating forms: (i) it appeared to her that the grievor was not given appropriate credit by Mr. Thanki for offering relevant information in response to questions; (ii) the panelists were inconsistent in the number of ticks marked and the score assigned in - 27 - respect of certain questions; (iii) the number of ticks did not, in all cases, correspond to the mark given: and (iv) there were differences in the written comments made by the various panelists. Counsel referenced the fact that the panel did not meet ahead of time, in a meaningful way, for purposes of discussing the process. In this regard, she noted Mr. a Thanki's evidence to the effect that he did not direct the panelists to follow the scoring guidelines for each question. Specific mention was also made as to Mr. Thanki's statement that he would not necessarily count the ticks but, rather, would assess the answer in a more global sense. On a related point, counsel referenced Mr. Thanki's further statement that a candidate would not necessarily receive a mark for providing one (1) of the required answers. While the District Manager's evidence was not entirely clear, it seems as if he would only give credit for an answer if it was given in a way which showed the candidate understood the specific area being explored in the question. In his words, he would not reward a "shot-gun" approach. Mr. Thanki testified that he wanted more in an answer than just a name or a concept. When asked to clarify his approach in this area, Mr. Thanki replied that he sought to glean whether the candidates were "just hitting names on memorytl or whether they were "living the experience and doing the things the question is about" in their Store. Ultimately, it seemed that Mr. Thanki might not give a mark for a required answer if it was not presented clearly and in context. By way of remedy, the Union asked that I place the grievor into the position, together with compensation and interest, rather than ordering a re-run with conditions attached. Counsel for the Union argued that - 28 * the posted position was not excessively complex and that there was an abundance of evidence to show the grievor was qualified for same. She stressed that none of the witnesses presented on behalf of the Employer testified‘that the grievor could not perform the job or that they would have concerns if he was placed in it. Counsel argued that the grievor, s as the senior and qualified candidate, should be awarded the position so as to bring closure to the dispute. In advancing this argument, she referenced the following excerpt from -aGeneral Ho-al of ate Heart of Mary and C-an Union of Public FJWlDvees, r1oca.l 1_023 (1990), 16 L.A.C. (4th) 172 (Craven): "HOW this balance is struck will depend on the circumstances of each particular case. Where, as here, the collective agreement provides for the appointment of the senior capable applicant, and the incumbent's ability is not at issue, several factors must be weighed. The arbitrator will consider the qualifications and responsibilities of the job itself. Where the job is particularly complex, the responsibilities particularly onerous, or the skills required particularly difficult to assess in the context of an arbitration hearing, an arbitrator may be more inclined to defer to the specialized knowledge of the employer. The arbitrator will also consider the nature of the employer's breach. Where the employer's conduct of the original selection casts doubt on its ability or willingness to conduct a remitted selection properly, an arbitrator may be more inclined to order the selection of a specific individual. A third factor is whether the parties have provided in their collective agreement for a trial period during which the employer retains the discretion to return the incumbent to her former position should she prove incapable, in practice, of performing the job. In the proper circumstances, an arbitrator may conclude that such a provision sufficiently ensures the employer's interest, so that it is appropriate for the arbitrator to expedite the selection and ensure finality in that phase of the process by awarding the position to a specific individual. Finally, where there are several grievors with varying seniority, all of them senior to the successful applicant, an arbitrator may have to weigh the relative efficacy of the various remedial options." (pages 180-181) - 29 - In response, it was the position of the Employer that I should not interfere with the selection as the decision to appoint Mr. Sullo, instead of the grievor, was made reasonably, in good faith, and without any discrimination. In this respect, I was cautioned against usurping an appropriate management function. The award in & Can&an J&QJX I 1Union. w 225 (1990), 11 L.A.C. (4th) 376 (Roach) was cited in support of this position. Counsel for the Employer submitted that the Union had failed to establish the grievor was qualified for the posted position. He emphasized the importance of a 'Cl Store Manager being skilled and able to work independently, efficiently, and effectively. Reference was made to the fact that such a.Manager performs a significant role in both the Store and community without the benefit of daily supervision from the District Manager. Counsel emphasized that the position is one requiring leadership, verbal, listening, and sound communication skills. It was noted that 1997 gross sales at Store #llO exceeded two million dollars ($2,000,000.00). Simply stated, it was the Employer's assertion that the Union had not met the onus of showing the grievor could satisfactorily assume the enhanced responsibility expected of the Manager. Counsel argued that, in the context of this case, the Employer properly determined the grievor was not qualified given his failure to score sixty percent (60%) or more in the interview. Counsel submitted that the Employer was fully justified in utilizing an interview as part of the process as the collective agreement did not preclude such use. '\ ', _ - 30 - Additionally, he maintained that the use of an interview did not serve to transform the process into a competition. From the perspective of the Employer, the interview on February 5, 1997 was conducted fairly and reasonably. Counsel argued that the questions asked were all reasonably related to the job and that the answers given were properly scored. He s contested the Union's claim that the scoring was unreliable and that it was the product of consensus scoring. Counsel further submitted that there was nothing improper about the rounding-up of the interview scores, as it occurred in respect of all three (3) candidates. In s-ary, I was asked to find that the panel's assessment of the grievor, premised on his interview, supported its conclusion he was not qualified for the position. The awards in & Reuous mers of St. Joseph . . es Uw &al 465 (1994), 43 L.A.C. (4th) 155 (Simmons) and R.e AC- Platers . ted SteelWrs of Am-a. Local 8059 . (1997), 68 L.A.C. (4th) 344 (Knopf) were relied on in terms of this aspect of the case. Counsel for the Employer noted that the performance appraisals, disciplinary records, and attendance histories of the candidates were accessed as part of the initial screening exercise. He suggested it was immaterial that the panel did not review the appraisals. This submission was premised on the fact that performance appraisals at Store #llO were completed by other bargaining unit personnel. Counsel asserted that, because of this, "sole reliance" could not be placed on the appraisals. In his words, the interview was "seen as an opportunity for management to determine through its own eyes whether a candidate is I . : . , qualified for a It was the to the grievor's position". - 31 - ultimate position of the Employer that its judgment as qualifications should be sustained for all of the above reasons. Counsel submitted that, in.the alternative, the matter should be remitted back to the Employer for re-evaluation of the grievor's qualifications instead of putting him directly into the position. The Employer relied on the awards in v Plws Co-v Iltd, and & ma1 503 (1988), 1 L.A.C. (4th) 60 (Thorne) in support of this request. In reply, the Union noted, inter alia, that there was no evidence to indicate that LCBO employees who are Store Managers and who,also happen to be bargaining unit members, are not capable of exercising their duty and responsibility to accurately appraise the performance of employees under their supervision in a valid and appropriate manner. Counsel for the Union questioned why the Employer would call Mr. Sussex as a witness to comment on the grievor's abilities, if it had reason to doubt his views by virtue of his inclusion in the bargaining unit. She further observed that the new procedure outlined in exhibit #ll is not restricted to candidates who have been appraised by members of the bargaining unit. More specifically, it also applies to 'A' and 'B' Store Assistant Managers. Both counsel were presented with an opportunity to respond in writing to the following Grievance Settlement Board awards issued by this Arbitrator under the collective agreement between OPSEU and Management Board of Cabinet: &.pperta, 2554/87; WOOdSI 2253/87; - 32 - , 2238/87; Coulter/Charleau, 1395, 1304/88; and Waskv/Wriaht I 1832, 1833/91. Each of these cases involved the application of the relative ability clause found in article 4.3 of the aforementioned agreement. Generally, these awards stand for the proposition that a competition panel should consider an applicant's performance appraisals I in order to assess whether she/he is qualified and able to perform the required duties. Further, they suggest that a failure to engage in this type of review, accompanied by excessive reliance on interview performance, is likely to lead to a conclusion that the selection process is fatally flawed to the point of requiring some arbitral intervention. The following reasoning excerpted from the HQQ& award is reflective of the approach taken in the above-cited decisions: II . . . . . . . . ..There is no doubt in our minds that generally competition panels should resort to personnel files and candidate's supervisors in coming to a decision as to the relative merits of those applicants interviewed. Numerous panels of this board have imposed this requirement in order to assure that a full assessment is made as to the applicant's qualifications and ability to perform the required job duties. Such a course of action will also ensure, to the extent possible, that a candidate will not be prejudiced in terms of their right to claim a benefit arising from greater seniority. An employer who fails to engage in this type of process and who relies exclusively on the interview to determine success within the competition is taking a substantial risk that this board may ultimately set aside - 33 - the competition should its result be contested..................." (pages 10-11) The question I directed to counsel was whether the above-described approach'is also applicable to decisions made on job postings under article 21.5(a). The Union's written submissions on the point were . received on July 27, 1998. Counsel for the Union answered the question in the affirmative. She argued that such approach should be applicable to the present case, despite the difference in contractual language, "because the issue of how an Employer should decide with respect to a particular job candidate, whether that candidate is qualified, is no different in a relative ability situation, and in a sufficient ability situation". Put another way, counsel asserted that the "first step" under a sufficient ability clause, that is determining whether a candidate is qualified, is the same "first step" taken under a relative ability provision. She noted that the difference is that there is a "second step" under the latter type of clause as the Employer is required to compare the qualifications of qualified candidates. Counsel stated that this comparison should not occur under a sufficient ability clause as the senior candidate is entitled to the job if she/he can demonstrate they are qualified. From her perspective, there was sufficient evidence led in this case to support placing the grievor directly into the position. The Employer's written submissions were received on August 11, 1998. Counsel for the Employer submitted that the criteria set out in the five (5) Grievance Settlement Board awards cited above are of limited applicability in respect of a job posting conducted pursuant to - 34 - article 21.5(a) of the instant collective agreement. In this regard, he focused on the approach a selection panel must use when administering a sufficient ability article and contrasted same with the exercise required under a relative ability clause. Counsel argued that under the former type of clause, there is no need for a panel to review personnel * files or seek supervisory comments as long as the method of assessment used provides a conclusive or satisfactory answer to the question as to whether the candidate is qualified for the position. In his submission, the interview utilized in this case met that test in the sense the panel could properly determine therefrom that the grievor was not qualified for the posting. Counsel suggested, inter alia, that the panel's failure to review the grievor's performance appraisals was immaterial as they would not have shed any light on his ability to perform in the position of 'Cl Store Manager. He stressed that the appraisals related to the grievor's work in the Customer Service Representative position. From his perspective, the panel's failure to consider the appraisals did not constitute a fatal flaw in the selection process. Indeed, counsel argued that even if the documents had been reviewed, they would not have materially influenced the ultimate decision. He noted further that the Employer is "wary of relying" on the opinion's of ICI Store Managers in respect of promotions given they also fall within the bargaining unit. In the final analysis, I was asked to sustain the result in this case. In the alternative, it was the position of the Employer that the matter should be remitted back to it for resolution by way of re-evaluation of the grievor's qualifications. As stated earlier, article 21.5(a) is a sufficient ability clause '\ . - 35 - pursuant to which a promotion must be awarded to the senior qualified candidate. This type of provision, in my judgment, places certain obligations on the Employer in terms of the nature of the process it uses to fill job postings. Clearly, the process should be designed to focus on the qualifications of the senior person in respect of her/his a ability to perform the duties and responsibilities of the posted position. I am satisfied that the process should, normally, include an assessment by the selection panel of the senior applicant's work history and experience, including a review of relevant performance appraisals, supervisory comments, and disciplinary and attendance records. These sources of information are important because they will likely provide the panel with some insight as to how the applicant might perform if placed in the job. More specifically, it allows them to match the employee against the actual job duties and to thereby reach an informed assessment as to whether the person has the needed skill, ability and experience. Put a slightly different way, I think that a panel places a selection in real jeopardy when it disregards information relevant to the threshold question with which it is seized. I have no doubt the process may include an intenriew, or test, of the type used here, subject .to the caveat that there is a substantial risk such an interview, without more, may be viewed as insufficient in terms of its ability to yield an accurate assessment of the candidate's overall qualifications. Generally, the interview should form part of the exercise rather than being the entire process. In other words, it should not serve as the sole or exclusive measure of an employee's qualifications, especially in situations where other relevant data is , : - 36 - readily available. In summary, I conclude that the process should be sufficiently comprehensive so as to permit the Employer to make a fair, reasonable, and informed decision as to whether the senior candidate is qualified to perform the work. I have been persuaded, after considering the parties submissions, that the approach reflected in Hoo&, and the other Grievance Settlement Board awards cited, is applicable to this dispute. In my judgment, the reasoning found therein is relevant in that it speaks directly as to how, or by what method, an Employer should assess employee qualifications. Clearly, such issue applies to postings under both a relative ability and a sufficient ability clause. Equally important is the fact that failure to engage in this form of comprehensive assessment may deprive employees of the right to benefit from their seniority. Arguably, such right is greater, and the loss more prejudicial, under a sufficient ability clause pursuant to which the senior person, if qualified, is entitled to the job. It is clear that, in this instance, the selection was premised entirely on the results of the interview. The panel, here, did not review the grievor's performance appraisals. While Mr. Thanki was likely aware of their content generally, as a consequence of signing same, there is no evidence that he discussed the appraisals with the other two (2) panelists. In this regard, there is similarly no evidence that Ms. Davis or Mr. Thibodeau knew anything about the nature and extent of the grievor's work history. I am satisfied that the performance appraisals were used solely as part of the screening exercise. More specifically, they were accessed by the Human Resources . - 37 - Department to determine which of the initial applicants met the basic requirements so as to be eligible for an interview. The documents were not utilized by the panel for purposes of assessing the issue of qualifications. I find this to be somewhat surprising given the emphasis the Employer places on appraisals in its policy filed as z exhibit #15. The policy notes that one (1) of the objectives of performance appraisal is to *'measure and document actual work performance against established goals as a basis for merit increases/promotions". I have not been persuaded that the appraisals should be discounted for the reasons suggested by the Employer. The duty to appraise is part of the job of the 'Cl Store Manager. There is no evidence that Mr. Sussex performed the appraisals in a less than satisfactory, or in an unreliable, manner. In any event, I consider it significant that the more recent appraisals were signed by Mr. Thanki. I doubt that Mr. Thanki would have taken this step if he believed them to be inaccurate. Mr. Thanki testified that the interview was treated as conclusive or determinative in assessing the grievor's qualifications for the posted position. To repeat, Mr. Thanki on this point stated as follows: "If the most senior candidate receives sixty percent on the interview, they would be deemed to be gualifiedV8. He added that the fact the grievor got less than this percentage led the panel to conclude he was not qualified. In his words, the grievor, as a consequence, was "deemed not to be qualified". As stated previously, the questions asked at the interview were, in my estimation, reasonably related to the job. Ultimately, however, I have not been satisfied that the five (5) - 38 - questions and answers thereto, standing alone, constitute a sufficient foundation for not awarding the job to the grievor. As a consequence of the process used in respect of this job posting, 'the following information was not taken into account by the panel in reaching its decision that the grievor was not qualified: . (i) the grievor had worked at Store #llO in the period 1977 to 1997 as a Clerk 2, Clerk 3, Clerk 4, and Customer Service Representative, and that these positions involved the assumption of progressively greater responsibility; (ii) that the grievor had gained considerable experience in the areas of report preparation and related office work; budget preparation: attendance at Manager's meetings; scheduling and time and attendance: inventory and stock; and ordering of supplies: (iii) that the grievor acted, or filled in, for the Manager over a twelve (12) year period when either Mr. Randle or Mr. Sussex was absent from Store #llO. The grievor assumed this responsibility more than any other employee in the years 1985 to 1997. In the period 1985-1994, the Clerk 4 position description required the grievor to act as Assistant Manager and to take responsibility for the Store in the absence of the Manager. This responsibility continued after the grievor became a Customer Service Representative: (iv) that the grievor was assigned to act as Manager following the departure of Mr. Sussex from the Store; (VI that the grievor performed all of the above duties in a satisfactory manner, as evidenced by his positive performance appraisals. The panel, similarly, did not consider Mr. Sussex's comments noted in the appraisals to the effect that the grievor met or exceeded all competency areas and that he was more than capable of taking charge of the Store in his absence. I note, at this juncture, that the Employer did not lead any evidence to suggest the grievor had performed in a less than satisfactory fashion in any of his prior positions or on those occasions when he acted as Manager. In my judgment, the failure of the panel to consider the above information and its excessive reliance on the results of the interview, rendered the process fatally flawed. - 39 - After considering all of the evidence relating to the grievor's experience and work history, and assessing same in the context of the demands of the position sought, I conclude that the grievor was qualified for purposes of article 21.5(a) of the collective agreement. I accept that the test for this assessment is not one premised on a perfection but on reasonable ability to perform the duties of the posted position. I am also satisfied that this is an appropriate case to order the grievor into the position rather than to remit the matter back to the Employer. As noted, a substantial amount of evidence was presented over the course of six (6) days of hearings. Much of the evidence related to the grievor's prior work history, experience and qualifications. Alot of this relevant information should have been considered by the panel but was not, largely because of its overreliance on the interview. I am confident that there is sufficient evidence before me to support an informed decision on the threshold issue of qualifications. This is not a case where the job is so complex as to require me to defer to the judgment and expertise of management. I also consider it material that this posting occurred in December, 1996 and that Mr. Sullo has been in the position since March of 1997. For labour relations reasons, it is preferable that closure be brought to this dispute. For all of the above reasons, I order that the grievor as the senior and qualified candidate be put into the position of Manager of Store #llO effective March 17, 1997, or on such other date as the parties may agree. The grievor is entitled to any lost compensation. I remain seized for purposes of implementation of this award. I note - 40 - the effect of article 21.9(a) of the collective agreement. Pursuant thereto, if it becomes apparent that the grievor is unable to perform the requirements of a 'Cl Store Manager in a satisfactory a period not exceeding three (3) months from the appointment, he can be returned by the Employer to * classification. manner within date of his his previous As indicated earlier in this award, the Union argued that for various reasons the scoring of the interview was questionable, arbitrary and unreliable. Given the result in this case, it is unnecessary to address those submissions. Generally, however, I think it is exceedingly difficult to go back in time and try to assess what might have been in a panel member's mind when she/he assigned a particular score or made a tick or comment. In my experience, there are always likely to be discrepancies in marking on the part of a selection panel. It is clear that individual panel members may differently assess a candidate's response. This reality is to be expected from a panel comprised of several persons and is the reason why scores are totalled and then averaged. In the context of this proceeding, and in the absence of clear evidence to support some adjustment, I would be extremely reluctant to engage in what would be tantamount to a remarking of the answers. In order to avoid future difficulty, the Employer may wish, if it has not 'already, to document and circulate its policy on "rounding-up". , This decision has serious ramifications for Mr. Sullo who has occupied the position since March, 1997. The resolution of this case is based entirely on the requirements of the collective agreement and - 41 - should not be read as a critique of his experience and ability. As stated earlier, the possibility exists that Mr. Sullo may well be the superior candidate. That possibility, however, is irrelevant under a sufficient ability clause such as article 21.5(a). Once the grievor is found to be qualified, he is entitled to the job by virtue of his . greater seniority. Subsequent to the receipt of written submissions, counsel for the Union provided me with a copy of the recently released award in QLBN 0924/97 (Knopf). Counsel for the Employer responded by letter of August 19, 1998. Generally, he took the position that the award in w, .w was distinguishable and should not be followed. Given the result in the instant case, it is unnecessary to comment at length about this recent award. I do note, however, that the reasoning and approach applied therein is consistent with my treatment of this case. Accordingly, the grievance is allowed. Dated at Windsor, Ontario this 1st day of September, 1998. M.V. Watters, Vice-Chair w- v conror 5OUd c, ot Onlario POSITION DESCRIPTION BARGAINING UNIT MO EXCLUDED Apdk -7 . t ~0~1th nue: ‘C’ Store Manager sup~8sdln~ PO~IUO~ nu0: ‘C’ Store Manager Immecttat~ Supsrvlw<s nue: District Manager Supermtln~ PoslUon Code: 10~-00-86x-04 PoolUon co&: 104-00-86x-04 Data: ’ Poslucn cods: 10-0-00-86x-366 Mk48l0ll: Retail tJqartm5nt: SecUcn: Nonhsm. Wesklrn. Eastern. District Number of Incumbents: Provldes Group LeadershIp lo: No. of Posltlons: No. ot PLaces: 1-3 * l-3’ Number of Hour8 Workd: 40.00 Purpose of Position: . * casual/PPTs To assume the responsibility and accountability by planning. coordinating, scheduling and admlnlsterlng all store operations. Level of store is determined by volume of units sdd. Currently the ‘C’ Store level Is 78,001 and above Duties and Responsibilities: Under the general supervision of the District Manager, the positlon assumes responsibility and accountabllhy for In the contrd and operation of the assigned LCBO ‘C’ Store by performing the followlng activities: CUSTOMER SERVICE Enhances customer service levels by adhering to Retail’s “Standards of Excellence” document by ensurlng: prompt and courteous attention; provision of information, as requested; adherence to dress code; knowledgeable staff; ensures store has a visible and positive image and Is sensitive to the needs of the community; and maintains a high standard of overall internal and exlernai store cleanliness; providing information to customers with inquiries and resolving complaints from customers, as required, etc. SOCIAL RESPONSIBILIM Manages store within social responsibility practices by ensuring tralnlng availability lo all staff for programs such as SMAART, and compliance with Liquor Contrd Act, including, refusal of service to underage and intoxicated persons. HUMAN RESOURCE MANAGEMENT Ensures full utilizatlon of staff through selection process, tlmely training, assignment of work, guidance, two way communication through regular staff meetings, formal staff performance appraisals, contrd of overtlme, attendance and vacation schedules, etc., and disciplinary action if necessary. Admlnlsters the Cdlectlve Agreement, investigates and attempts lo resolve employee complaints. Monitors Workers’ Compensation claims and return to work programs when applicable. Ensures that sound safety and work practices are carried out within the Store and that all employees observe and comply with rules and regulations withill the Occupational Health and Safety Act. Ensures timely completion of monthly Health and Safety reports. Ensures that work is performed in an environmentally responsible manner with appropriate awareness of environmental implications of decisions made and actions performed. MERCHANDISING Manages appropriate and timely execution of corporate merchandisinq directives and planograms. Monitors and ensures shelves and displays are fully stocked in appropriate location to provide a “Ready for Business’ envhonment and maximize profilability. INVENTORY MANAGEMENT Ensures Inventory levels are consistent with customer demands, integrity of shipment to involces and appropriate storage and handling of the product within warehouse and store areas. BUSINESS MANAGEMENT Forecasts sales by rnalntainlng an awareness of sales hlstory, local events, marketing opportunftles to accurately forecast sales. Monitors and applies information and trends from Store Income Statements. Ensures Inventory levels reflect business requirements. Monltors and approves store budget and store business @an In accordance with corporate directives and standards and ensures tasks are completed In a cost effective manner. Ensures compkance of all store operatlonal and LCBO pdlcies and procedures ldentlfled In appllcabte manuals; all relevant regulations and leglslatlon such as Freedom of Information and French Languages Services Act. FACILITIES MANAGEMENT Malntains store to high standards through a program of preventative maintenance for buildlng systems by the update and maintenance of the Building Maintenance Checklist. SECURIN . Ensures security of inventory, cash ano assets through application of LCBO Loss Preventlon pdicles, and procedures. Ensures staff awareness of potential shoplifting. OTHER RESPONSlBlLlTiES Performs other duties as assigned Knowledge and Skill: (requited to perform the job al lull working level) Devefoped knowledge, skills and abillty to perform at the ‘C’ Store Manager level, through a comblnatlon of progressive experience In store operations and relevant educational programs, where applicable. YOU must also demonstrate an awareness of LCBO strategies including Customer Service Standards of Excellence and Health and Safety/Workers’ Compensation Board environmental Issues. Good leadership, interpersonal and communication skills. Completion of Product Knowledge level as deslgnated up to level 3. AuthoIlzatlon: I cuury that the toregoIng Is an accurate dosc*Uon of the p0sltton. Sop~~leor’s TlUo and Name Slgmture: Date: DqautmonVDlvWon Tlth and Name Slgnaturs: Date: POSITION DESCRIPTION BARGAINING UNIT AND EXCUDED POSIUO~~ 7-w Customer Service Representative supusedlng Posluon Tttte: Liquor Store Clerk Supersecung PoslUon coda: 10-0-0086x007 PoalUon cc-h: 10~~0436x.-007 Date: October 1986 lmmedtntr Supervk3or’s nth: Store Manager Dtvlslon: Retail Department: NocIhsrn, Western, Eastsrn Cenual Rsglons POPlthl Cob: 10-0-00-a5xxIox Sectlon: Dlstrlct/Store Number ol Incurnbenls: Provides Group LeadershIp to: Number of Hours Worked: Approximately lMo- 13ooPFl 325 - 330 PPT No. ol Posltlons: 0 No. ot Placss: 0 40.00 Purpose of Position: To provide prompt and courteous customer service, merchandising and Inventory management of product, store security and also social responsibility regarding the sale of the product. To assist In the buslness and facilltles management of the store. Duties and Responsibilities: Under the supervislon of the Store Manager, the position performs retail support actlvltles by: CUSTOMER SERVICE Ensurlng customer service standards are malntalned in all facets of store operatlons by: greeting and acknowledgmg customers; serving the customer promptly, courteously and with tact; determining customer needs and preferences, and providing product knowledge and Information, as requested; performing cashier duties as asslgned; processing Special Occasion Permits as requested; using good judgement in handling customers’ queries and complaints; maintaining a “Ready for Business” environment by filling shelves, Information rack, displays, ensuring cash register area is ready, coin boxes are located at cash register, turning on climate contrd and &ckQround music (if availaue); Improving general appearance of the store; supportlng community sponsored programs; providing additional services to meet customer needs such as locating product, carry outs, special orders, etc.; advising management of customer needs/requests and identify listing opportunities, etc. MERCHANDISING Participating in the maintenance of a well merchandised store that is “Ready for Business” by: participating In appropriate and timely execution of corporate merchandlslng dlrectlves e.g. signage as per corporate direction and standards; exhibitlng knowledge of application, of participation In: merchandising Inltlatlves; IMAGE program; shelf-management program such as implementing plan-o-grams, category layout, product display directives; and listing and de-listing program; ensuring fully stocked shelves and displays, refrigeratlon units fully stocked with cold product; stock replenishment is completed in the following order: stock outs, displays, best sellers, others; contributing an ongoing exchange of information with Category Management to providing feedback on results of Merchandising initiatives; recommending products for listings. INVENTORY MANAGEMENT Ensiring that the correct quantity of inventory is at the store at the proper time by: exhibiting ability to order quantities consistent with customer demand; unloading, storing and rotating stock in orderly, systematic and safe manner; monitoring Inventory levels versus requirements and taking/suggesting appropriate remedial action. maintaining knowledge and application of corporate social responsibility practices, SMAART, Liquor Contrd and License Acts; participating in operating the slore in an envlronmentally responsible manner with appropriate awareness of environmenlal implications of decisions made and actions periormed; Bug&-h&~ Unll and Exctudod PosItIon Do~crlpUon SOCIAL RESP0NSlBiLiT-Y - exhibiting positive pubiic image: adherence lo dress code, visible to the pubilc. and promotlng social responslbiiity re: use of alcohol, - ensuring that Issues of product quality are addressed immediately; - knowing and appiylng relevant LCBO pdicies and procedures and leglsiatlon (Occupational Health and Safety Act, Workers’ Compensation Act, WHMIS, Human flights Code, etc.). guidelines. BUSINESS MANAGEMENT ..a . - assisting in forecasting sales re: sales history, local events, marketing opportunities; - properly interpreting Store income Statements to include data sourcing, analysis, interpretation and application; - assisting in preparing/monitoring Store Budgets in accordance with corporate dlrectives and standards; - assisting-in purchasing inventory/supplies; minimizing expenses and proposing cost savlngs; - offering suggestions on how to improve operational efficiency. FACILITIES MANAGEMENT - contributing to the day-to-day store maintenance and cleanliness by performing the following tasks: ensuring parking lot and landscaping are clean and maintained, all lighted signs are In good working order, exterior of building is in good condition, interior of buifding has clean floors, ati lights are working, store hours are posted at entrance, wails and shelving are well maintained, carts and baskets are maintained, the maintenance of the wine well, washrooms are cleaned on a daily basis and the office is neat and organbed; - participating in preventative programs; participating in Store Maintenance Checklist program. SECURITY - maintaining controi of cash register tray, safe and ail cash; - verifying all records for accuracy; - carrying out proper shipping and receiving procedures; - alerting of and minimizing potential shopiihrng; - advising Store Manager of instances of theft by employees; - advising Store Manager of potential security risks; - operating security systems; foilowing securrty procedures. CONTINUOUS LEARNING - achieving training standards required (e.g. Product Knowledge levels as designated). - participating in corporate promolion and training programs and applying principles (e.g. Customer Service Excellence. IMAGE, “That’s the Spirit, Workplace Harassment, New SMAART, etc.); - sharing knowledge, experienceand expertise with co-workers and new employees (i.e. transfers, new Casuals, Christmas Casuals, etc.), OTHER - Performs other duties as requested Knowiedae and Skill: lreauired to Detiotm the lob al full workma level\ Previous related retail knowledge, experience and skfils. Tact, diplomacy, good verbal and written communication skills; the ability to maintain effective interpersonal relations with customers and fellow staff members; malhematlcal and clerical skills; ability IO operate a cash register with Speed and accuracy and a good knowledge of cashiering procedures; initiative and reliability; ability to work with mlnlmal supervision in routine duties; ability to meet the essential physical requirements of the position; a working knowledge of relevant retail poiicies/procedures/guidefines/manuais; general knowledge of products soid by the LCBO; demonstrated awareness of the LCBO strategies e.g. Customer Service Standards of Excellence, Ready for Business Standards; completion of Product Knowledge level as desfgnated up to level 3. Authorlzalon: I CeItlty that the :oregolng la an accurP1e dCxxxlpuon Of the posluon. Supu~lsor’o TMo md Name Slgmluro: DC41.3: Dap8ulmonuDlvlslon Tltla and NPms Slgmturs: Dale: 1 , .I 60SCLK4 I L.C.B.O. POSITION DESCRIPTION POSITION COVERED BY THE COLLECTIVE AGREEMENT NAME OF EMPLOYEE: AREA OF RESPONSIBILITY: Operations CLASSIFICATION: Liquor Store DIVISION: Retail Clerk Grade 4 REGION: Northern, Eastern, Central POSITION TITLE: Western, Metro Toronto SECTION: IMMEDIATE SUPERVISOR: Store Manager (NAME/CLASSIFICATION): 4 PURPOSE To perform store clerk duties and responsibilities in conventional and self serve stores. .- Acts as Assistant Manager in “C” Stores. DUTIES AND RESPONSIBILITIES Regular: Approximate % of time In an advanced working level position, the incumbent performs customer service, stock and store maintenance, security functions, cash handling and all management reporting by: Assisting customers to interpret price lists, 20% complete purchases, fetch and wrap merchandise. Unloading, checking and storing stock, pricing 20% bottles, restocking bins, dusting displayed stock, cleaning store, warehouse and surr0undin.g’ premises. 7 ‘ding and maintaining displays. Operating cash register, preparing bank envelopes and 40% depositing daily sales reports and sales analysis, taking inventories, posting ledgers. Processing licensee applications and special occasion 10% permits. Assuming responsibility for store operations in the absence of the Manager or Assistant Manager which includes: 5 % - key store functions: - supervision of staff: - customer complaints. (N.B. this is a designated responsibility of the position i n ” C ” Stores. ) I? - ccasional: Other re !ated du ies as required DECISION yAKING/COMPLEXITY Problems encountered: Minors or in,toxicated customers demanding service. Errors on purchase order forms. When substituting for Manager. position may encounter personnel problems or customer compiaints. Decision making: Judgement is required to identify problems and determine appropriate action to situations as listed above, according to guidelines established by store manuals containing policy, practice and procedures. -ypes of decisions or problems referred to supervisor: Those which are of a sensitive. complex, unusual or special nature are referred, such as personnel problems. CONTACTS ?osition contacted Frequency Reason for contact Internal: Work unit Daily Exchange of information fsternal: General public Daily Customer service SCPERVISION GIVEN (number. classification, reporting relationships1 . -ccasionally to junior and,‘or temporary staff as directed by supervisor ly. SUPERVISIOY RECEIVED Supervisor outlines methods and procedures by: Pos:i ti0n works under general supervision and guide :iYll?s. Frequency of guidance and direction rece .As and when required. York checked by: accord ing to established standards ved: Generally, only detailed paper work such as management reports. sales analyses, inventories and requisit ions are checked for accuracy and mpleteness. 3RKING CONDITIONS/PHYSICAL DEMANDS (unusual aspects/physical effort) Sustained periods of lifting and stacking cases COWMENTS (additional information) Bilingualism (french and english) in designated areas. SCPERVISOR’S COMMENTS . Any comments necessary to complete or improve accuracy of facts provided. Amount of specialized or technical knowledge, skills, and education required to perform the duties of this position. A. s1 ilon requires a knowledge of and ability to perform key store . clnctions. 3emonstrab;e literacy. clerical arithmetic and interpersonal ability. Amount and type of work experience to satisfactorily perform this job, including previous experience on other related jobs in the organization, or in other organizations, plus a reasonable training period on the job. Previous experience in a Liquor Store Clerk Grade 3 position. October 1986 Incumbent: . 3ate: Immediate Supervisor: Date: