Loading...
HomeMy WebLinkAbout1997-0923.Currans&Chaput.98-07-29’ . EMPLOY& DE LA COURONNE DE L’OMARIO COMMISSION DE REGLEMENT DES GRIEFS 180 DUNDAS STREET WES 7; SU/lE 800, TORONTO ON MSG Ii-8 TELEPHONE/lktiPHONE : (416) 326- 1388 180, RUE DLJNDAS OUEST; BUREAU 600, TORONTO (ON) MSG lZ8 FACSIMILE/TiLkOPIE : (416)326-1396 GSB#0923/97, 0924197 OLB#048/97. 049/97 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (Currans/Chaput) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) BEFORE Paula Knopf Vice-Chair FOR THE UNION Gary Caroline Counsel Caroline Englemann Gottheil Barristers and Solicitors FOR THE EMPLOYER Laurel A. Johnson Counsel Ogilvy Renault Barristers & Solicitors THIRD PARTY Richard Savage /INCUMBENTS) Pierre Roy Employer REARING November 20, 1997 February 23, April 3, May 19, 25, June 22, 1998 DECISION This is a job posting case involving two positions of manger at LCBO retail outlets known as “C” stores. There are two grievors who have greater seniority than the two people selected for the sought after positions. Both incumbents were invited to participate in the proceedings. They attended throughout the case. The relevant provisions of the collective agreement are: 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. 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 The position of manager of the “C” store is a bargaining unit position. The “C” store is designated as such because of its size, sales volume and number of staff relative to other smaller and larger outlets, ranging from “A” to “D” designations with “A” being the largest. The smaller outlet is known as a “D” store. There are two positions affected by the case. One is the “C” store called Casselman and the other is called Rockland. The Position Postings for the two opportunities are the same. The relevant portions of those Postings read as follows: PROFICIENCY IN ENGLISH AND FRENCH ESSENTIAL 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 “C” 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 & 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: o Merchandising o Inventory Management o Business Management, eg. budget o Facilities Management, eg. repairs, maintenance 0 Security The LCBO is an Equal Opportunity Employer PLEASE NOTE: o 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 satisfactory work performance; b) review of discipline and attendance records; c) French Language Services requirements, where applicable. -3- With very few exceptions which will be noted later, the relevant facts are not in dispute. In a nutshell, the two grievors, the two incumbents and one other person were interviewed for the two positions because they met the “basic requirements” listed in the Position Posting. As a result of their performance at the interviews, the two grievors and one other candidate were considered to have “failed the interview”, The remaining two candidates were offered the two positions. The evidence regarding the grievors and the selection process will be reviewed in some detail. Robert Cw He has worked for this employer since 1979. He was the second most senior applicant. He applied for both of the positions. He is fluently bilingual. His work experience includes approximately 14 years as a clerk in three different “A” stores. For almost two years from, 199 1 to 1992, he worked as the “Acting Manager” at the Rockland Store which is the subject of this grievance. He then returned to the position of clerk until he was awarded the Manager’s position at the “D” store in Bourget. This is the position that he holds to this day. In this capacity he has three casual staff who work with him. For the last two years he has reported to the District Manager, Guy Marcotte. Prior to this, Pierre Trudeau was the District Manager. Mr. Chaput’s annual performance appraisals from 1990 to 1996 were filed in evidence. The performance ratings vary from 1 to 5 with 1 being the highest and indicating “consistently exceeds business requirement.” Number 5 is the lowest rating and signifies “does not meet business requirements.” Each of Mr. Chaput’s ratings are listed at number 2 which indicates “performance consistently meets business requirements and sometimes exceeds them.” On individual issues such as “achievement of business goals” -4- and “management of work”, he is consistently rated at at least 2 with positive comments. In terms of “management of people” he is rated at “3” for the last two years which signifies “performance meets business requirements.” The comments of Mr. Trudeau record Mr. Chaput’s “unorthodox” and “direct” style in dealing with staff, but also credit that employees enjoy working with him. Earlier appraisals are consistent with this type of pattern. Mr. Chaput received a specific commendation for his work in the acting manager assignment at the Rockland store, On June 29, 1993 Mr. Trudeau wrote to Mr. Chaput saying: Bob, I wish to take this opportunity to thank you for the excellent job you did during your assignment as store manager in Rockland. Considerable improvements in both customer service as well as profitability were noted, eg. Net income increased $61,876 or 12.3% ending March 3 1, 1993, and nil customer stock outs for the majority of the time. These results, as well as maintaining a balance in all other areas of store operations, reflect your total dedication and loyalty to you employer [sic]. You have demonstrated that meeting the needs of our customers directly affects the bottom line. Again, thank you for your efforts, I appreciate your hard work and your positive attitude. That letter confirmed an earlier appraisal given in March 1992 of Mr. Chaput’s performance as an acting manager when Mr. Trudeau outlined the improvements implemented by Mr. Chaput and concluded, “Thanks for a good job.” -5- Mr. Chaput testified that there is “no difference” at all between the responsibilities of an acting store manager and a full-time manager because the former is put in control of a store for the duration of the assignment. In Mr. Chaput’s mind, an acting manager is expected to take over all the staffing, budgeting, layout, maintenance, stock and security responsibilities of a manager. Mr. Chaput also testified about the successes and improvements he has achieved as the manager of the Bourget store, especially in the nature of increased sales. Mr. Chaput fin-ther believes that there is no difference between his responsibilities as the manager at the “D” store in Bourget than the responsibilities he would assume as the manager at the Rockland “C” store. When the Rockland and Casselman openings were posted, Mr. Chaput applied for both because, as he testified, “I figured I was the man for the job. I was there before __. both stores ran the same way.” Mr. Chaput’s former district manager, Pierre Trudeau, had worked for this employer from 1966 to 1996. He was the District Manager from 1992 to 1996. He has now retired but was Mr. Chaput’s district manager for many years. He was in retirement at the time this competition was being held. Mr. Trudeau was never asked by the LCBO to give his opinion about Mr. Chaput or his suitability for the positions he was seeking. Mr. Trudeau’s opinion is that there is no difference between the type of responsibilities of a “C” and “D” store manager. Mr. Trudeau praised Mr. Chaput’s performance as a “D” store manager, describing him as “excellent” and “obsessed with customer service.” Mr. Trudeau also described Mr. Chaput’s “strengths” as being in the areas of inventory control, social responsibility and merchandising. Mr. Trudeau did express some concerns -6- about whether Mr. Chaput would be able to explain the financial or budgetary aspects of the responsibilities of a “C” store. On the other hand, Mr. Trudeau had no concerns about Mr. Chaput’s ability to actually deal with budgetary matters on a practical day-to-day basis. Mr. Trudeau also listed Mr. Chaput’s written communications and “unorthodox” way of giving direction to employees as other weaknesses to be considered. Yet, Mr. Trudeau hastened to add that he had never received a complaint from any of Mr. Chaput’s staff. Mr. Trudeau’s opinion was that Mr. Chaput is “qualified” to manage a “C” store and cites as proof the fact that he was left in the Rockland store as acting manager for close to two years without any problems and with the achievement of increased sales. Mr. Chaput’s interview was not a positive experience for him. He admitted to being “very nervous” going into the interview. He explained, “I’d never had an interview in my life.“. He was chagrined to see that the interview team consisted of his District Manager, Mr. Guy Marcotte and an “A” Store Manager, Karen Richardson- Norris. The third member was Colleen Imbesi, from Human Resources. Mr. Chaput felt that he and Mr. Marcotte “did not get along” very well. Mr. Chaput also felt that he and Ms. Richardson-Norris “had been fighting since a golf tournament” and he says that he had not spoken to her since. He described feeling that ” I don’t have a chance” when he saw Ms. Richardson-Norris on the panel. Mr. Chaput began the interview thinking that only one vote would be favourable to him, that being from Ms. Imbesi. The irony is that he received the highest scores from Ms. Richardson-Norris and from Mr. Marcotte respectively. Ms. Imbesi ended up rating him the lowest. Further, Ms. Richardson-Norris described her relationship with Mr. Chaput as “good”. In fact, she described how he had approached her for assistance in the interview even before the job posting was official. This is the normal kind of request. But she had to advise him that she could not help him -7- because of her involvement on the selection panel. Further, she admitted that she socialized with other candidates such as Mr. Savage. She said that she sees “everybody” socially, including the two grievors, after work and mentioned formal and informal staff festivities. She disagreed with Mr. McKinnon’s (another store manager) testimony that it would be inappropriate for her to interview people whom she knew socially. She said “I knew everyone socially. What difference would it make?” Mr. Chaput understood that the interview would determine whether he got the position. He admits that he gave the interview “his best shot.” He also admits that he answered the questions posed to him based on his knowledge of LCBO policies and his experience over the years including as an acting “C” and actual “D” Store Manager. Michael Currans Mr. Currans has 19 years’ service with this employer. He is fluently bilingual. He is classified as a bookkeeper. He has worked as a clerk in “A” stores. His recent experience includes working as a bookkeeper for three years in the Ottawa distribution depot. At the time of the grievance he was working at the “Vintages” location, assuming responsibility for all the accounts and servicing the “higher clientele”. He was “second in command” at that store, acting informally as an assistant manager and filling in during the manager’s absences. His daily responsibilities included bookkeeping, client services, inventory, budgeting, staffing and scheduling issues. He has filled in on other formal “acting assignments”. In 1985 he was acting manager for “C” stores for two periods of two and six weeks. He also served three times as the acting manager of the Rockland “C” store, filling in during the manager’s -8- summer vacations. In 1993 he received a letter from Pierre Trudeau thanking him for the work done as the acting manager at Rockland and saying, “operations were handled in a competent, organized and effective manner.” A similar letter of praise was issued in 1985. I would like to thank you for the excellent job you performed as acting manager in Plantagenet and St. Isidore this summer. Operations were handled in a competent, organized, and effective manner. You assumed complete responsibility for the stores, including customer service, stock, security and accounting procedures. These functions were carried out conscientiously, and with the confidence and judgement of an experience manager. [sic] Congratulations on a job well done In June 1996, the Director of the Eastern Region wrote a letter of praise to Mr. Currans regarding his performance at his regular duties, which reads: Just a brief note to congratulate you on your exceptional performance over the last performance review period. It is the dedication and service of people like yourself that will truly make the LCBO the “Retailer of Choice.” Mr. Currans’ annual performance reviews were filed for the period 1988 to 1996. From 1990 onwards the performance rating is consistently rated at number 1 being “outstanding” or “exceptional” or “consistently exceeds job requirements” He has taken several product knowiedge courses and taught service modules to fellow employees. Five years ago, Mr. Currans was selected as one of the 20 employees in the province to be sent on a one-week course in Human Resources which was taught off site. He is also pursuing a business management certificate at the college level on his own initiative. -9- Mr. Currans only applied for the Rockland position. He believed that he would get the job. Mr. Currans had an expectation that he would be awarded the position because he was the senior applicant who had worked in the store, knew the clientele and had been praised for his work by the District Manager, He also felt he had direct experience in all aspects of the key areas listed in the Position Posting. However, Mr. Currans described himself as being “nervous” and “apprehensive” about the interview. He felt a little uneasy about Karen Richardson- Norris’ presence on the interview panel because Mr. Currans had acted as the assistant manager above her at the Vintages store when she was there earlier as a Product Consultant. He also knew that another candidate for these positions, Rick Savage, had worked with Ms. Richardson-Norris. Mr. Currans believed that Ms. Richardson-Norris and Mr. Savage attended dinner parties together outside of the work context. However, Mr. Currans admits that he is not alleging that Ms. Richardson-Norris’ marking or scoring would have been affected by her past dealings with either himself or Mr. Savage. Ms. Richardson-Norris describes her friendship with Mr. Currans and Mr. Savage as being on “an equal basis.” ._ The interview itself began with Mr. Currans being told by Mr. Marcotte that the questions would be repeated if requested. Mr. Currans exercised this option many times and asked for some questions to be repeated more than twice. At some point, Mr. Marcotte felt that this process was not yielding any significant results and refused to allow the questions to be repeated. But his colleagues on the panel insisted that the questions be repeated at Mr. Currans’ request and the questions were in fact repeated for Mr. Currans. At the end, Mr. Currans felt that he had answered all the questions well and that he had done “OK” at the interview. He feels that he gave all the information he could - IO- at the interview and he admits that he had an opportunity to apply his knowledge of LCBO policies and his experience in answering the questions. When he was not awarded the job, he filed this grievance because, as he testified, “I felt I’ve been more or less gipped. I felt I’m the candidate for the [Rockland] position. You can’t base 20 years on six questions to say you’re not qualified to do the position.” John McKinnon was the manager of the Vintages store from 1995 to 1997. He confirmed the range of duties that Mr. Currans performed at that store and explained that Mr. Currans had acted as the unofficial assistant manager. Mr. McKinnon described Mr, Cur-ran,? strength as being “committed, very professional, never a problem with lateness and a lot of experience. ” His “weaknesses” were said to be presentation skills and product knowledge in the context of a Vintages store. In that context it is common for the customers to specifically request the assistance of the specialized Product Consultant or the manager. But Mr. McKinnon added, “I noticed improvement [from Mr. Currans] from the day he came to the day he left.” Mr McKinnon testified that Mr. Currans was “capable” of managing a “C” store. “He had the basic overall leadership profile necessary to become a manager. He was firm. Yet he would listen to an employee with a problem ‘. He had a humanistic encouraging profile which he brought to the work place... He made my job easier.” Mr. McKinnon rated both Mr. Currans and the other candidate, Mr. Savage, as “above average employees.” Mr. McKinnon explained that Mr. Currans received a higher performance rating over Mr. Savage in the year prior to the competition because of Mr. Currans’ “contribution to the store and the yearly budget.” - ll- The Selectinn Process In the past, Article 2 1.5 has been administered very simply by this employer. Position postings solicited applications. The applications were reviewed. The senior applicant would be given the job subject to a check of the annual performance appraisals, the disciplinary records and whether the applicant’s manager’s evaluation revealed any difficulties. As Mr. Trudeau described the process, “if there was nothing in the file to say he can’t do the job, then you’ve got yourself a manager.” The current District Manager, Mr. Marcotte, described this system as “good” in the sense that it was “fast”. He added, “sometimes we got good candidates and it tied up a lot less time. It was seniority based.” On the other hand, Mr. Marcotte commented that this system tended to promote people who had been there a long time and who were not very “hungry” or “motivated” in terms of performance. Mr. Marcotte also commented that some of the longer serving employees were more dictatorial rather than being “team players” from the new school. The old process would not weed these kind of people out. Mr. Trudeau testified that in 99% of the cases, the Employer was able to find someone to satisfactorily fill a vacancy by simply reviewing employee files. In the unusual cases where the employee was found not to be suitable, the employee would be returned to his former position before the end of the three month “probationary period” and the position would be reposted. The Employer decided to implement what it hoped to be a more sophisticated system of administering Article 21.5. Mr. Marcotte explained that the Employer wanted to be able to assess candidates’ qualifications, skill, and ability before the - 12- promotion. The Employer reviewed all the applicants’ annual performance appraisals, discipline and attendance records for purposes of deciding whether an applicant would be interviewed. If no difficulties were noted the three senior applicants were given an interview for each position. In this case, five applicants were interviewed. The interview team is selected by the District Manager. The team consists of the District Manager, one store manager, and a representative from the Human Resources Department. Mr. Marcotte chose Ms. Richardson-Norris to be on this interview panel for “developmental” reasons. She was a relatively recent appointment as an “A” store manager and had never served in a competition process for a “C” store manager, or indeed, for any full-time promotion. She had previously participated on selection committees for casuals and for hiring people from the casual to the full-time staffing pool. The third member of the interview team was Colleen Imbesi who was selected as the “impartial” representative from Human Resources. The questions for the interviews were selected by Mr. Marcotte from a bank “of existing interview questions developed for interview purposes.” Mr. Marcotte testified that he selected questions that would be related to issues and concerns of the jobs that were posted. The questions were chosen to cover issues in both the stores. The interview panel met briefly before embarking on the interview process. The members of the panel were given packages with the selected questions and “suggested answers” together with the scores available for each question. The order of the questions was predetermined and the questions were assigned to panel members to ask. Each candidate was asked the same question by the same panel member in the same order. - 13 - The only significant factual dispute in this case comes from the different testimony given by Mr. Marcotte and Ms. Richardson-Norris about how the candidates’ answers were scored. Ms. Richardson-Norris testified that each panel member scored answers independently and that they then revealed scores to each other after each candidate’s interview. She testified that there was no discussion about each of their scores. The three scores were then simply computed together to determine an average. She did indicate that in some interviews one panelist may seek clarification of an answer from another for scoring purposes. But she does not recall this occurring during this competition. She testified that there was no discussion about the scores with each other, simply an averaging of each individual score. Mr. Marcotte’s evidence was quite different. He testified that the scbres were compared for each candidate at the end of each interview to ensure that everyone was marking “accurately, in a non-bias fashion and in the same ball park.” Mr. Marcotte testified that the scores were then adjusted to achieve a “consistency” with the three panelists’ scores. He explained that this process would help disclose whether panelists had missed or misunderstood parts of an answer. Once the scores were adjusted they were added up after each candidate and divided by three to get an average score before the next interview would commence. A review of the documentation of the scoring sheets of each interview for each panel member does show that scores were adjusted, both up and down. Mr. Marcotte described Mr. Chaput’s interview as “not going very well.” Mr. Chaput was described as being “very nervous”, having “trouble focusing” and using a “shotgun approach.” He used only one half of the hour allotted to him for the interview. He did not ask for the questions to be repeated. Mr. Marcotte described Mr. Currans’ interview as “lacking in detail” and unable to focus on questions. Mr. Cur-rans was described as being “nervous, but looking composed.” - 14- The results of the interview were as follows: currans 42.38% ROY 55.71% L. 41.43% Chaput 48.33% Savage 57.38% The plan had been to offer the positions to the two senior candidates who “passed the interview.” Ms. Richardson-Norris testified that there was no discussion or issue about the passing grade in this case. She recalled no considerations about reducing the passing grade by any amount. On the other hand, Mr. Marcotte testified that a pass mark of 60% had been set. Mr. Marcotte also testified that with these results, the interview panel sought and received approval from the Regional Director to reduce the passing grade to 55%. Mr. Marcotte testified that it not the practice to try to reduce the acceptable passing grade by any more than 5%. When the passing grade was deemed to be 55%, that left two candidates in a pass position. The most senior remaining candidate, Mr. Roy, was offered his first choice of positions. He chose the Casselman store. Mr. Savage was offered and accepted the Rockland store. Ms. Richardson-Norris testified that she was “surprised” by the results of the interviews. She said she had no preconceived notion of who would succeed in the competition. But she felt that because Mr. Chaput and Mr. Currans had been in acting positions, their experience “should have come out better in the interview.” Mr. Marcotte testified that he had expected that Mr. Chaput and Mr. Roy would be the successful - 15- candidates prior to the interview. The practice was that if nobody achieved a passing score, the competition would be rerun on a broader geographic basis. Mr. Marcotte admits that the “new process” of appointments being based on the interviews of screened senior applicants has some weaknesses. He testified “it would be nice to have a review of the file as a percentage of the total marks because some people come to interviews and are very nervous and could probably perform the duties, but at the interview just can’t pull themselves together.” On the other hand, Mr. Marcotte credits the interview process as being able to “bring out past knowledge and experience of the candidates and allowing a strong candidate to surface” while “it still allows seniority to be the determining factor.” He also feels the interview can demonstrate “motivation” if a candidate comes well prepared because this would show his/her “motivation.” Mr. Marcotte also feels the interview can “weed out” the old style of “dictatorial management.” Mr. Marcotte feels that there was plenty of scope in the interview questions to demonstrate leadership and team skills. The interview questions were: The Manager is responsible for facilities management at the store. . How have you personally been involved in this process? . What other aspects of facilities management would be your responsibility? Explain what you would use for selecting product for placement on end aisle displays in your store? Your store is open every Friday night and your casual employee has just verbally advised you that he is unable to work Friday nights.. . How would you handle this situation? . What factors would you take into consideration for resolving this problem? - 16- In front of you is a Store Income Statement that is provided to all managers on their operation. In the middle of the page there are several line item descriptors. . Could you identify what are the 5 (five) most important? . Could you provide a brief description of what each represents? What do you do to ensure effective inventory management at your store? Describe how you provide quality customer service at your store? Give an example of an occasion in the past when you had to apply the social responsibility of the LCBO. . What were the circumstances, how did you handle it, and what were the results? Mr. Marcotte testified that he had been unaware that either grievor had worked as the acting manager of the Rockland store. But, management did not consider either grievor’s experience as an acting “C” Store Manager as a relevant or determinative factor in this competition. As outlined above, both grievors had experience as acting “C” store managers. The District Manager, Guy Marcotte, describes the difference between a “C” and “D” store as being based on the fact that a “D” Store Manager usually works by himself7herself so that there is less of a focus on staffing or human resources issues. Mr. Marcotte also described the differences between an acting and a permanent managerial assignment. Mr. Marcotte said that the manager has actual responsibility for the operation of the store. The assumption is that a manager would be fully knowledgeable and aware of difficult issues concerning the store. In an emergency, the manager would be expected to handle and resolve a problem. Managers are also expected to meet their defined business plans and goals. On the other hand, Mr. Marcotte explained that acting managers are not governed by or assessed in terms of - 17- business plans. In emergencies, they would be expected to seek the assistance of the District Manager unless it was a very minor matter. Training Mr. Trudeau outlined the “training” given to new managers during the first three months in the position under Article 21.9(a). He described this as a “three- month probation” which gives the District Manager time to evaluate the successful candidate as the new manager. Mr. Trudeau described that at the beginning of the three- month period he would discuss job responsibilities and set minor goals with the new manager so it would be possible to assess the ability of the person to assume the responsibilities of a manager. Mr. Trudeau would then provide “coaching” by attending the store at least once a month and responding to problems. He also encouraged new managers to seek help from the network of other managers. At the end of the three- month period the District Manager would decide if the new manager should continue in the post. Ms. Richardson-Norris described the purpose of this three-month period as not being an opportunity for the candidate to learn the job. Instead, she described it as an opportunity for management to see how the person handles the job. Submissions on Behalf of the Grievor-s Counsel for the grievors began his submissions by giving a detailed review of each of the grievor’s history of employment and achievements as employees for the LCBO. Turning to the selection process, it was argued that the new process represents a fundamental shift from one where the Employer determined whether a candidate met the qualifications of a position to a more competitive process where qualifications are - 18- determined without reference to an employee’s past performance. It was suggested that there was “little evidence” to explain why the old process was unsatisfactory. The Union argues that the low scores attained at the interview and the decision to lower the passing mark to 55% “in and of itself ought to have signalled to management that there were problems with the structure and the content of the interviews.” The Union takes strong objection to the fact that the interview was used “as the sole means” to determine whether each of the applicants was “qualified.” The Union objects to the fact that past experience and performance in the position were considered to be irrelevant except where such knowledge would be of use in answering questions at the interview. The Union criticizes the Employer for selecting questions that would not reflect the specific qualities that the District Manager was seeking in a store manager. In particular, the Union is critical of the fact that although Mr. Marcotte was looking for “team leadership” qualities, the questions that were asked would not tend to demonstrate such qualities. It was also argued that Mr. Marcotte ran the interview process in a way that was “more akin to a competition than a determination of whether the senior candidates possessed the basic skills required for the position.” The Union stressed that this collective agreement has a “threshold clause” which means simply that the most senior applicant who has the necessary ability, knowledge and aptitude to do the job should be granted the position. It was stressed that this does not allow the Employer to promote the most qualified employee for the position, but instead the most senior employee who has the basic qualifications. The Union also stressed that the three-month training or “probationary” period allowed the employee time to become efficient in the position. Counsel for the Union argued that the jurisprudence establishes three general principals applying to job competitions and threshold clauses in particular: - 19- When such clauses are present in the collective agreement, the employer must award any job posting to the most senior applicant that meets the basic requirements; When assessing the basic requirements, the employer must take into consideration all the relevant factors; experience, past performance, education, references etc.; An employer may not rely solely on one instrument (i.e. written test, interview or the like) to assess whether applicants meet the basic requirements of a position. Further, the Union criticizes the Employer for not making the selection panel aware of the applicants’ background or personal file, including performance evaluation. It left the selection board with the responsibility of making a decision based solely on the results of the interview. The Union describes this as a flawed process and lists the following elements as factors that put in doubt the fairness of the process: (9 (ii) (iii) A reasonable apprehension of bias with Ms. Richardson-Norris sitting on the panel, given that she had been a co-worker of Mr. Currans and a friend of Mr. Savage; Reasonable apprehension of bias with Ms. Richardson-Norris and Mr. Marcotte given Mr. Chaput’s perceived difficulties with them; Insensitivity to Mr. Chaput’s concerns about bias and nothing being done to alleviate his perceptions; A “weak link” between the questions asked and the duties of the position; Weights attributed to each question not being reflective of the amount of time the job specification attributed to each time or function; - 20 - (vi> (vii) (viii) Giving panel members suggested answers and leaving the impression that panel members marked candidates based on how closely they came to giving the expected answers; The types of questions and the manner of questioning failed to “draw out relevant personal experience or knowledge;” Influencing panel members to change their scores in the interest of achieving balance or consistency, rather than letting the scores reflect each panel member’s individual view of how the questions had been answered; and Giving insufficient attention to lessen the nervousness felt by the grievors during the interviews. The Union argues that the Employer’s process was unfair and failed to produce a reasonable or reliable indication of whether the two grievors were “qualified.” By way of remedy, the Union argued that this is an appropriate case for the arbitrator to exercise jurisdiction to award the positions directly to the grievors. Stressing that this is a “threshold case”, it was pointed out that the grievors were demonstrated to have had successful experience as acting “C” Store Managers at Rockland. They had positive performance evaluations for a significant period of time, they had both received positive statements from their supervisors about their ability to assume the duties of a “C” Store Manager, and the grievors were the senior applicants. Finally, it was stressed that there would be a great deal of difficulty in objectively assessing the performance of the grievors as of the date of the competition, being February 1997, given the passage of time that the incumbents have had in the jobs. The Union requested that Mr. Currans be awarded the position of manager of the Rockland store and Mr. Chaput the Casselman store. Further, it is requested that both grievors receive the difference in salary and benefits (if any) retroactive to the date the incumbents assumed -21- their positions. The arbitrator was asked to remain seized with any difficulties arising from the award. In support of its submissions, the Union relied on the following cases: University of Windsor and SE. U. (1997) 62 L.A.C. (4th) 197 ( Rayner), Ken&l Canada and U.S. W.A., Local 8.505, unreported decision of Doug Stanley dated April 18, 1986, Inglis Ltd. and United Steehvorkers of America, LocaI 4487 (1979), 22 L.A.C. (2d) 175 ( O’Shea), Workers’ Compensation Board of British Columbia and Workers’ Compensation Board Employees Union (1989), 4 L.A.C. 4th) 141 ( Hope), City of Winnipeg and C. U.P.E., Local 500 (1990), 12 L.A.C. (4th) 23 1 ( M. H. Freedman), Kenora Roman Catholic Separate School Board and Ontario English Catholic Teachers Association (1993), 37 L.A.C. (4th) 28 ( G. J. Brandt), Greater Niagara GeneraI Hospital and O.N.A. (1997), 60 L.A.C. (4th) 289 (J. H. Devlin), Quinn andMinistry of Transportation & Communications, GSB File 9178 decision dated December 13, 1979 (J.R. S. Prichard), Marek and Ministry of Attorney General GSB File 4 14183, decision of J. Samuels dated January 24, 1984, LibiiUScipneck and Minisfry of Transportation, GSB File 252519 1, decision of Nimal Dissanayake dated November 19, 1993, Brooks and MinisQ of Health, GSB File 390182, decision of R.L. Verity dated November 22, 1982, Alam and Ministry of Community and Social Services, GSB File 140184, decision of R. J. Roberts dated November 5, 1987 and Deltassist Community Services Society & I.C.T.U. (1997), 62 L.A.C. (4th) 185 (R. Germaine). - 22 - e LCBO Counsel for the Employer began by acknowledging that this collective agreement creates a threshold test for the selection process. It was conceded that the language does not permit comparisons of qualifications between qualified candidates. It was acknowledged that the most senior applicant will be awarded the position so long as s/he is qualified, even if others are better qualified. Counsel argued that the selection process adopted in this case to verify whether applicants were qualified complies with the collective agreement. It was stressed that the Employer has the right and the responsibility to determine qualifications. Further, nothing in the collective agreement specifies how the qualifications of the candidates will be determined. In addition, it was argued that the Employer applied the selection process properly. It was submitted that the jurisprudence identifies management’s rights in the selection process as being as follows: 1. That management has the right to determine the qualifications of the job on the basis of relevance to the job, provided that the qualifications are not set in an arbitrary fashion or in bad faith; 2. that “qualification” means that the candidate must possess knowledge of the job functions and possess sufficient skill and ability to carry out the requisite tasks and perform the work required by the position at a full working level at the time of the competition; 3. that if the candidate does not have the minimum of qualifications, there is no obligation on management to interview or to hire; - 23 - 4. that the initial onus is on the grievor to show that he or she is qualified; and 5. that if the grievor meets this onus, then the onus shifts to the employer to show that the grievor is not qualified. It was further argued that, absent any restriction in the collective agreement, an employer can require perspective applicants to submit to a test or an interview to demonstrate their qualifications for a position. It was acknowledged that the criteria that ought to be considered are as follows: 1) The reason for the institution of the test; 2) the adequacy of preparation for the test afforded to applicants; 3) the administration of the test; 4) the reliability of the marking of the test; and finally, 5) the relevance of the test to the work to be performed. Turning to the specific complaints of the Union, it was argued that the Union had failed to make out any case that there was a reasonable apprehension of bias in this situation. With regards to Ms. Richardson-Norris, it was said that it was unreasonable to suggest that panel members should never have socialized with any other candidates. It was acknowledged that the process may be susceptible to bias, but it was stressed that there are safeguards in the system, including the use of three panel members. Further, it was stressed that while the grievors may have personally felt some uneasiness about Ms. Richardson-Norris’ presence, there was no significant evidence to show or establish the basis of a reasonable apprehension of bias. - 24 - Turning to the way the scores were computed, it was argued that Mr. Marcotte’s evidence should be preferred over that of Ms. Richardson-Norris’ and it should be accepted that there were changes made to the scores as a result of discussions between the three panel members. It was argued that the scores themselves give no credence to the complaint of bias because the scoring changes increased Mr. Chaput’s score by 4 and had no effective change on Mr. Currans’ score. In addition, counsel for the Employer stressed that the Employer’s use of suggested answers and the questions which were selected meet all the tests of the jurisprudence and amount to an appropriate methodology. Further, it was said that the Union had failed to establish that the selection process was developed or applied in bad faith, with bias or arbitrarily. It was pointed out that the candidates were fully aware of the process to be used well in advance, that the questions were relevant and the scoring fair. Counsel for the Employer argued that if there was a finding that the selection process violated the collective agreement or was not applied properly, the grievors should not be awarded the job directly. Instead, it was said that the appropriate remedy would be to order the Employer to develop a selection process which includes the following considerations: Performance appraisals, time limited to some extent Disciplinary record, time limited to some extent Attendance record, time limited to some extent Interview Supervisory references - 25 - Further, it was said that the Employer should set up a new competition with the amended process and make it available to the grievors and the two incumbents. After this process is applied, it is argued that the two senior successful applicants should be offered the Casselman and Rockland “C” store manager positions. It was stressed that it would be inappropriate to award the positions directly to the grievors. Counsel for the Employer pointed out that it was the unanimous opinion of the interview panel that neither grievor was “qualified” for the jobs. It was stressed that Mr. Chaput’s performance appraisals show “an ongoing problem in the human resources area” and that this was acknowledged by the grievor himself. ‘It was said that placing Mr. Chaput in a “C” store manager job would disregard the interview results and award him the job based on performance appraisals in a different position. Similarly, it was stressed that the interview panel unanimously felt Mr. Currans was not qualified for the position of “C” Store Manager and that there is insufficient evidence upon which to award him the position. In support of its submissions, for the Employer relied on the following cases Trail Association for Community Living and CUPE Local 2087, unreported decision of Ken Albertini, dated September 2, 1994, DeBonis, Knight, Piwerka and LCBO, GSB File Nos. 1113/85, 1116/85 and 1117/85, decision of J. Forbes- Roberts dated May 29, 1989, Durant and Evans and LCBO, GSB File Nos. 1586194 and 1587/94, decision of Nimal Dissanayake dated May 30, 1996, MacDonald and LLBO/LCBO, GSB File No. 1402/88, decision of W. Low dated January 29, 1992, Corporation of the City of Ottawa and The Ottawa-Carleton Public Employees Union, LocaI 303, unreported decision of Jane Devlin dated May 24, 1994, Germaniuk and Ministry of Transportation and Communications, GSB File No. 91183, decision of P. M. Draper dated December 7, 1983, Coca-Cola Bottling Ltd. (Winnipeg) and UFCW, - 26 - Local 330 W, unreported decision of David E. Bowman dated November 14, 1994, Cip of Winnipeg and CUPE, Local 500 (1990) 12 L.A.C. (4th) 23 1 (Freedman), Wright and Waskey and Ministry of Health, GSB File Nos. 1832191 and 1833191, decision of M. Watters dated February 16, 1994, Esmail andMinistry of Revenue, GSB File No. 1186187, decision of Nimal Dissanayake dated September 6, 1990 and Chen and Talon and Ministry of Health, GSB File No. 70179, decision of Gail Brent dated December 14, 198 1. . . e Decmon This award must start by setting to rest any notion of bias in this case. There is absolutely no evidence to support an argument that this selection process was tainted by any bias or even any reasonable apprehension of bias. Taken at its best, the Union’s case is that two members of interview team had either a social relationship with one of the successful candidates and/or the District Manager may have been predisposed to some candidates over others. The “social” relationships were shown to be nothing more than the type of “after work” mingling that occurs amongst colleagues. In this context, the vague notion of a “social” relationship is not close enough to render a person inappropriate to participate in a selection committee. Similarly, there can be no finding of bias without any concrete indicia that the District Manager had any form of bias for or against any of the candidates. Further, the evidence disclosed that the two members of the panel who have been accused of bias actually scored the grievors higher than the one panel member who was considered by the Union to be impartial. For all these reasons, the Union has failed to establish that this selection process was conducted with any bias or bad faith stigma. - 27 - The more complex question is whether the selection process was conducted in a manner that complies with Articles 21.5 and 21.9 of the collective agreement.. The parties agree that the selection process is governed by a threshold clause. The collective agreement does not permit comparisons of qualifications between qualified candidates. It is agreed by the parties that the senior applicant will be awarded the position so long as s/he is qualified, no matter how much better qualified others may be. Given this contractual context, the Union queries the necessity for interviews and prefers the Employer’s previous practice of merely checking the candidate’s work history and manager’s evaluations to determine if there is any reason why a senior applicant would not be qualified for promotion. Nonetheless, the Union acknowledges that the Employer does have a right under this collective agreement to use an interview as a method of determining qualifications. This is an appropriate approach for the Union because the collective agreement does not prevent the Employer from initiating this methodology. The question then becomes how should the interview be utilized? Some reference to jurisprudence may be helpful. I agree with the approach taken in the Corporation of Ottawa case, supra, where arbitrator Jane Devlin concluded at page 23 : In this regard, it is now generally accepted that absent a restriction in the collective agreement, an Employer may properly require prospective applicants to submit to a test to demonstrate their qualifications for a position. _. . Tests of applicants’ qualifications, however, must be administered fairly and without bias and, in this regard, it has been suggested that a number of criteria ought to be considered. These consist of (1) the reason for the institution of the test; (2) the adequacy of preparation for the test afforded to applicants; (3) the administration of the test; (4) the reliability of the marking of the test; and finally, (5) the relevance of the test to the work to be performed. - 28 - Given this guidance, it is useful to review how this employer’s procedure has met the criteria set out in the City of Ottawa case, supra. . . son for thdnstltutlon of the IntervIew The Employer’s evidence was that the previous system was successful 99% of the time in finding suitable candidates for promotion, If someone was promoted who could not fulfil the expectations, s/he could be returned to the bargaining unit within the three month “probationary” time. But the Employer wanted to institute the interview to both weed out inappropriate management styles and to identify the “hungry” or highly motivated candidates. This makes good organizational sense. Further, it is within management’s prerogative to set certain specified criteria for a position. This, in turn, creates a responsibility for management to design a “test” or interview process that identifies and evaluates such criteria. However, the Employer cannot be faulted for its decision to institute the process of an interview as part of its administration of selections for promotions. Muacy for the Preparation for the Test Afforded to the Applicants In this regard, the Employer cannot be faulted. Candidates were told in advance that there would be an interview and were made aware of the fact that their success would depend on their performance at the interview. They were also told in a basic form how the interview would be conducted. There were no surprises for candidates in this process. - 29 - n of the Test The interviews were conducted well in many ways. All candidates were treated the same, asked the same questions by the same panelists and ultimately given several opportunities to answer the questions. Any problems that may have developed in the course of an interview, such as the initial reluctance to give Mr. Currans a chance to have some of the questions repeated, were immediately rectified. Therefore, it cannot be said there were any problems with the way the interviews were administered. The interview panel’s scoring methodology is very problematic in this case. First, there is a disturbing conflict in the evidence in this key area between the testimony given by Ms. Richardson-Norris and that given by Mr. Marcotte. Both were credible witnesses and appear to be honest. Ms. Richardson-Norris said that there was no discussion or adjustment of any of the marks after each candidate was interviewed. Mr. Marcotte’s evidence was quite different in that he described how the panelists each added up their marks and then discussed the marks. Then the marks were adjusted in an effort to achieve consistency. Mr. Marcotte’s evidence is more consistent with the documentary evidence which shows that scores were adjusted as he suggests. The difference in the evidence is significant in that it leaves this arbitrator without clear and reliable evidence regarding the method of evaluation and scoring. Clarity of such evidence would be the least that would be expected of an employer defending a selection process. - 30 - But even if Ms. Richardson- Norris’ evidence is discounted as being inaccurate because of insufficient or inaccurate recall, we are left with Mr. Marcotte’s evidence that the individual panel members discussed and then adjusted their scores after each interview to try to achieve consistency in marks. If this evidence is accepted, it would seem that the goal of the selection team was to achieve uniformity in scoring among the three panelists. This is fraught with difficulty. The purpose of the three member panel may be to try to eliminate any potential for bias caused by familiarity with candidates. But the adjusting of scores minimizes the individual impact of each panelist, discounts their input and reduces the value of a three member team. Further, there is no intrinsic value in uniformity of scores. Very disparate scores may sometimes signal that someone did not fully comprehend an answer. But it may also signal legitimate disagreement of a balancing of perceptions. Adjustments may well be appropriate once clarification is achieved. If Mr. Marcotte’s evidence is accepted, it must be concluded that the scores were adjusted for the sole purpose of achieving uniformity. This deprived all the candidates of the effect of three judgments. This negatively affects the reliability of the ultimate score attributed to each candidate. Further, treatment of the “deemed pass mark of 60%” is also problematic. The evidence of Mr. Marcotte shows that management decided that a pass of 60% would indicate a “qualified” candidate. The interview process yielded five senior candidates who were unable to achieve even a bare pass. Two of these candidates had performed the very tasks being tested with demonstrable success in the past. Management’s response to the fact that no one was able to pass by the set standard was to simply lower the pass grade to a point that captured the top two candidates. No explanation was offered for the 5% drop other than the fact that the pass level has never been reduced by greater than 5% in the past. -31- Again, this approach is unacceptable. The scores yielded no one over a passing grade from a field of five senior candidates. When this occurs, there are several possible alternative approaches that could be taken. One is, as has been done in the past, to simply rerun the competition on a much broader geographical area. Another approach would be that the interview panel could redesign the interview and scoring methodology and run the competition again amongst the same five candidates in the hopes of designing a better test instrument. The Employer should be able to justify why a pass grade of 60% was set and why a reduction of 5% was instituted. Again, the Employer’s evidence falls short because no rationale was offered other than past practice. Also, the arbitrator is left with another disturbing discrepancy in the evidence between Ms. Richardson-Norris and Mr. Marcotte because the former recalled no evidence or discussion about seeking approval and reducing the passing grade. This leaves the arbitrator wondering whether there ever was a discussion amongst the panel or just a decision by Mr. Marcotte to seek approval for the lowering of the passing level. Given the inappropriateness of the procedure and the weakness of this evidence, this arbitrator is left with evidence concerning the passing mark and the scores which cannot be considered to be reliable, .accurate or appropriate in this case. The Relevancy of the Quw to the Work Performed Neither grievor challenged the relevance of the questions asked in the interview. All the questions are easily seen to be related to many aspects of the job of a “C” store manager. But the fact that all five candidates failed the interview signals a real -32- difficulty with the questions being asked or the answers that were expected. If the questions were an appropriate test of the qualifications to perform the job, then the result suggests that none of the candidates were qualified and therefore none should have been promoted. Yet the Employer was prepared to promote the top two achievers during the interview. Given the past performance appraisals and achievements of all the candidates, the fact that all failed is surprising and was unexpected even from Mr. Marcotte’s point of view. On the other hand, if the questions failed to elicit the specific type of qualifications that management was seeking, then the interview and its questions must be considered to have been flawed. For an interview and its questions to be deemed appropriate in a threshold selection process, the questions must be shown to be able to elicit the qualifications management has designated as necessary for promotion and for performance in the job. The questions in these interviews may have been related to the job to be performed, but it is difficult to see how they would elicit the type of candidates that Mr. Marcotte was seeking. For all the reasons mentioned above it must be considered that the interview, although conducted in good faith and with good intentions, has not been established to have been administered fairly. The grievors’ case should succeed for these reasons. But the situation also demands attention be given to the way the Employer utilized the interview process itself to give guidance to the parties in the future. The Employer used the interview to determine the results of the selection process. It was the sole factor used by this employer to decide between the five candidates. Prior to the interview, management had reviewed their personnel files and annual appraisals. There was no reason evident to the Employer which would stand in the way of promotions. The Employer essentially used the interview as the sole determining -33 - factor to assess “qualifications.” In the Employer’s view, if the candidate passed the interview, s/he would be considered qualified and then the senior passing candidates would be,awarded the job. If the candidate did not pass the interview, then s/he would essentially be disqualified from the promotion opportunity. The cases cited by the Union are examples of the well established principle that an employer may utilize a test or an interview in a collective agreement with a threshold test. But the employer is not entitled to ignore other evidence that may be relevant. Other factors must be considered, including related experience, acting experience in the job in question, annual performance evaluations, related courses that have been taken and the entire personnel file, including both positive and negative indicators. The danger of relying upon the interview as the sole determining factor at the end of the selection process is that it necessarily forces the selection panel to evaluate a candidate’s ability to perform at an interview, not necessarily his/her ability to perform the job in question. Further, it tends to give the appearance of making a “threshold” selection process seem to be more like a competition. Finally, the interview becomes a tool to weed out otherwise appropriate candidates, rather than a tool to assess their qualifications. In the case at hand, the Employer’s process resulted in the selection panel being left with only the interview as a selection tool. In effect, it became an elimination tool. The interview panel was given five candidates whose employment history showed no reason for them to be denied a promotion. The selection panel had been given no access to the employment histories and experiences of the candidates. It is fair for an internal candidate to assume that the panel is or will make itself aware of the work history within the institution. The interview can then be utilized by a candidate to highlight his/her experience and demonstrate how it could assist in the performance of the desired job. The - 34 - candidate should not have to use an interview to relay basic information to the panel about his/her the work history in the institution. The most glaring evidence of the difficulties in the Employer’s approach in this case is the fact that Mr. Marcotte made his decision without any knowledge that either grievor had acted as a “C” Store Manager in the very Rockland store to which they were seeking to be promoted. This is an extremely relevant fact that should have been considered and weighed when deciding if a candidate was qualified to perform the job. It is true that management did give some attention to the candidates’ personnel files and previous experience in that no candidate would have been selected for an interview if problems or disqualifications had become apparent from a review of the files. But that is insufficient. The Employer is entitled to screen who will be interviewed. But thereafter the information still remains relevant and remains a necessary consideration or factor that must be considered by those people with the responsibility of determining qualifications for promotion. The Employer’s failure to allow the selection panel to consider all relevant factors amounts to a violation of Article 2 1.5 of the collective agreement. For ail these reasons, it must be concluded that the Employer has violated the collective agreement. The only question that remains is remedy. Remedy Arbitrators are quite properly reluctant to order that a person be placed directly in a promotion case. The role of an arbitrator is not to make decisions for management or to weigh or evaluate employees’ qualifications. That is a management - 35 - prerogative. This arbitrator is also mindful of the fact that the District Manager had serious and honest concerns about the grievors’ qualifications after the interviews were conducted. Further, the interview panel was unanimous in its rejection of the two grievors’ candidacies. However, for several reasons unique to this fact situation, it must be concluded that this is one of the rare instances where the Employer should be ordered to place both grievors into the positions they seek. First, there is a threshold test in this collective agreement. The Union need only show the grievors are qualified to perform the work in question. The uncontradicted evidence is that both grievors performed this work on an acting basis for significant periods of time. While never being formally evaluated in that role, they both received letters of praise for jobs well done. There is no evidence of any difficulties in their job performance in the acting roles. Secondly, nothing in their evidence or their personnel files revealed any reason to disentitle them or render them unqualified for the positions. Essentially, the Union has made out a prima facie case of qualifications that the Employer was only able to counter with the results of a flawed interview process. Thirdly, there would be grave difficulties in dispensing a fair rerun of this competition. The incumbents have been in place for a long time, since the early part of 1997. It would be virtually impossible to replicate the circumstances that existed at the time of the original selection process. While that is true in any promotional grievance where an expedited arbitration process is not utilized, the difficulty in designing an interview or selection process that ignores the last 18 months’ experience gained by the - 36 - incumbents outweighs the inclination to allow the Employer to redo a process in a threshold case with evidence as strongly in favour of the grievors as is present in this case. Finally, Article 2 1.9(a) cannot be ignored. That article shows the parties’ willingness to allow a person up to three months to perform the requirements of the higher position in a satisfactory manner. This is what the parties’ called the “probationary period” throughout this case. That affords both parties protection in the administration of the clause. It would allow the grievors to assume their responsibility and take on the assignment. If it does not work to the satisfaction of the Employer, the grievors understand that they would be reclassified to their previous classification. Because of all these unusual reasons, it is appropriate to order the Employer to place the grievors in the position of “C” Store Manager at the Rockland and Casselman stores as soon as practicable. The Employer is ordered to do so. Further, the grievors are entitled to any compensation that they may have lost as a result of the breach of the collective agreement. Further, I declare that the use of the interview as an ultimate or sole selection factor is inappropriate and in violation of this collective agreement. While the Employer is entitled to utilize an interview in the selection process, the Employer is also required to consider other factors in determining qualifications for employment. Those other factors which must be considered must include annual performance appraisals, references from immediate supervisors, discipline and attendance records, past experience within the LCBO and elsewhere and other related and relevant information that candidates should be encouraged to place before the selection panel I shall remain seized with the implementation of this award should the parties require any further assistance. -37- In closing, I thank counsel for their professional and expeditious handling of this complex and important case for the parties. day of July, 1998. L Paula Kdopf - Vice-Chairper . :