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HomeMy WebLinkAbout1988-0611.Essarie.91-01-31 · ONTARIO EMPL OYES DE LA COURONNE · ': CROWN EMPLOYEES DE L'ONTAR(O GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE2100, TORONTO, ONTARIO. MSG 1Z8 TELEPHONE/T~':L~PHONE: (476) 180, RUE DUNDAS OUEST, BUREAU 2700, TORONTO (ONTARIO). MSG IZ8 FACSIMILE/T~L~COP)E : (4 t5) 326-13~6 611/88 ZN THE MATTER OF AN AR~ZTR~TION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Essarie) Grievor - and - The Crown in Right of Ontario (Ministry of Government Services) Employer BEFORE: J.D. McCamus Vice-Chairperson J. Solberg Member W. Lobraico Member' FOR THE L. Trachuk GRIEVOR Counsel Cornish Roland Barristers & Solicitors FOR THE M.J. MacKiliop EMPLOYER Counsel Borden & Elliot Barristers & Solicitors HE~RING: November 24, 1988 The Grievor, Mr. Kelvin Essarie, has contended that he"has been unfairly denied a promotion to the position of Purchasing officer 2 in the Toronto Region. The Grievor participated in a competition for this appointment and alleges that the competition suffered from a number of defects. Although the grievance itself initially sought appointment to the position, the relief sought at the hearing of this matter was an order from this Board requiring that the competition be re-run in a more satisfactory manner. It is urged on the Grievor's behalf that the principal~deficiencies in the competition arise from the manner in which, the candidates' responses to interview question$ were evaluated by the intervieWing~ panel and further, from the fact that the panel did not consult either the Grievor'S personnel file or his supervisors. 'The absence of an adequate information base for the competition is,< it is argued, a fatal flaw which can be cured only by running the competition once again. The incumbent, Mr. Peter Ho, is 'the individual who enjoyed success in the competition. The panel i3as 'been advised that Mr. Ho, as an affected party, has been advised of ~the nature of these hearings and of his right to fully participate in them as a separate party, but has declined to do so. The Employer responds to these allegations in two different ways. First, the Employer argues that this is essentially, a grievance contesting a promotion made under the provisions of Article 4.3 of the Collective Agreement. That Article provid~slas follows: In filling a vacancy, the Employer shall give primary consideration to qualifications and ability to perform the required duties. Where qualifications and ability are relatively equal, length of continuous service shall be a consideration. The'incumbent Ho has greater seniority than the Grievor. Mr. Ho began his employment with the Employer in May of 1967. The Grievor was first appointed in May of 1969. Thus, it is argued by the Employer in the present grievance that in order to establish an entitlement to a promotion, the Grievor must meet the test set out' in Article 4.3 and demonstrate that his "qualifications ability" are "superior" to those of the incumbent~ thus entitl~h'~~': ~.'.~'~ the Grievor to the promotion in question. Meeting this standaPd~ it is argued on behalf of the Employer, is a necessary prerequisite to the obtaining of any relief, including the re-running of the competition, .in a grievance of this kind. Secondly, the Employer argues that in a competition grievance such as this, the Grievor should be entitled to a re-running of the competition only where it can be shown by the Grievor that the defects in the competition have resulted in an erroneous decision. As a preliminary point, we note that there are two Purchasing Officer positions of relevance to the present dispute - Junior Purchasing Officer (PO1) and Purchasing Officer 2 (PO2). The competition was for appointment to a PO2 position. The position is described in the job posting of relevance to the present dispute (Exhibit 2) in the following terms: 4 PURCHASING OFFICER 2 Required by the Ministry of Government Services, Toronto Region. You will ensure established procedures are followed and procurement is most advantageous; appraising service of suppliers to ensure reasonable and acceptable delivery; initiating tender process by invitation and advertising; establish tender periods and closing dates; provide solution to tender queries; receive tenders, record and retain in strict accordance with procedures; form tender opening committee; review tenders and establish authenticity; secure valid third party liability insurance certificates and bonds; update and submit various purchasing/tendering statistical reports. OUALIFICATIONS Sound knowledge of purchasing and tendering procedures applicable to government and the private sector,.normally acquired through related experience (certificate from a purchasing program is preferable); good knowledge of construction and maintenance commodities and their relative sources, advantages and limitations; ability to analyze quotations based on specifications; ability to guide others in purchasing/tendering practices; well developed oral and written communication mkills and interpersonal skills. Ability to operate microcomputer equipment. The competition was to be an open competition. A Selection Panel comprised of four individuals was appointed. The panel consisted of Mr. calvin Hermanstyne, the Regional Manager of Purchasing and Financial services, Mr. Irwin Massiah, Acting Regional Manager of Purchasing and Financial Services, Mr. Jim Fraser, Manager of Purchasing and Mr. A1 Lambert, a Human Resources Consultant. In due course, the panel identified five candidates, including the Grievor and the incumbent, as being suitable for an interview. As is normally the case in a competition of this kind, the Selection Panel prepared an interview schedule which consisted of a series of questions, a listing of expected answers and space left !. 5 for notations and marks to be assigned by each of the Selection Panel members. The questions set out, in the schedule, (Exhibit 8) together with the "expected answers" were as follows: QUESTIONS ~XPECTEDANSWE~S CANDIDATE'S ASSIGNED C~NOlI~S R~$PONSE MARKS MARKS 1. You h~ve read the position Ca~idaCes's responses 0 descripC£on, do you have ~ny ques=ions? 2. ~C p~lo~ e~eri~c~ -~rc~s~ e~er~a~ - ~. ~: role s~uld ~=c~s~ -~ure Cos= smvi~s, Z.e. 10 ~o~s/se~tces purc~ed. ~e~p~ad flow o~ 8oods/ .,. ~..~ re~azL~h~p wLC~ o~he~ ~, ~ l~o~i~ is ~eded -auc~c~zed appr~a~s. 10 on a re~L~L~ before LC -c~lece description c~ ~e pr~essed by ~e~lr~ncs (~i~ de~Lve~ -c~=rac= :e~, if app[icab~m -shL~ address ~ contact ~. -se~ec~t~a~Cion c~iceria. 5. H~ ts a ~rc~se -=e~is~Cion: ~e~ ~nC a puvc~se order, procur~n~ of ~o~se~lces -P.O.: ~ega~ c~traeC be=we~ 6, Y~ ce~Lved a =e~es~ -pc~eesl~e* for e~l~n= ~ are -co.amity ~o specification. re~r4~ ~o obca~rbal -~elive~ ~e~ ~onaCions fr~ vaztous -F.O.B. po~C. ~C~ ~s re.ired fr~ -pa~nc te~. =~se suppliers before ~ -s~Ler con~a~c ~ award ~eoisLo~ o~ be ~e? -rel/abill=y of supplier. -shLppL~/~l~ of o~rship fr~ seller Co buyer. -DLccace~ who ~s resp~bll~y 8, ~aC la a ce~er? How ts -fo~ process in which s~pIters it d~fferenC fr~ a ~ve e~i oppocC~i~y Co su~it ~ota=~on? sealed, ~2CCen bids b7 a cLos~ ~ace ~ :~. ~ bids ace ~e~ aC a speol~Led ~te ~ C~, I N~ ~ ~es of tenets? -~rt~se~ ~ Lnv~te~ 2 6 Q~E~TIOt~ EXPECTED ANS~S CANDIDATE* S ASSIGNED CA~)IIiATES RESPONSE MARKS MARY~ Governs? -achieve va~ue for dollar ~ ope~ -pro=ec~ =he public a~ainst collusive 10. Y~ ~re si~n a n~ber of -se~ priorities based on: 10 y~ ~e~ w~h ~hem ~s~ -~se tr~s~c=io~ which l~ed ~? -dollar val~ oi purc~se. -D~s~ss priorities w~ch -~e~ 11. Y~ ~ve ~rdered a ~=o~ -EstablLsh critical delive~ 15 f~ ~C ~upp~les ~ a da~e with lss~d. ~ re~si~lo~er ~ delt~ ~t when deliveu c~ ~o~ you n~= =~ be e~e~ced If e~edi~ed praised ~e~Lve~ ~te ~s -est~blish al~e~ves - ~ld you ~ ~o resol~e -c~cel o~is~l order, ~e-~rder ~he si~on? w~t~ n~ su~L~e= ~ ~Clon ~ be fo~. At the interview of each of the five candidates, the queStions were divided up amongst the three members of the Selection Panel other than Mr. Hermanstyne. Mr. Hermanstyne testified that he took a particular interest in attempting to ensure that each of 'the candidates was given a complete opportunity to answer each of 'the questions. Thus, Mr. Hermanstyne indicated that he often asked supplementary questions in order to obtain clarification of each candidate's answers. The interviewers scored each of the candidates separately and then brought their scores together to achieve a collective result. In the event, Mr. Ho achieved the highest score on the interview at 72. Ms. Aspinall was second with 61, Ms. Savage third with 56, the Grievor fourth with 48 and Ms. Weichel placed fifth with a score of 46. It is common ground between the parties that the only further steps taken by the Selection Panel beyond the interviewing process itself was a reference check undertaken by Mr. Herman~tyne with referees identified by Mr. Ho. Mr. Hermanstyne testified that he spoke to Mr. Ho's previous supervisors. Indeed, Mr. Hermanstyne had himself supervised Mr. Ho for a period' of timel Mr. Hermanstyne candidly conceded that he did not speak to. the Grievor's supervisors or, indeed, to anyone else about the quality of his work performance during his approximately 20 years of employment with the Employer. Although it was indicated that Mr. Fraser, who did not testify, had supervised the Grievor for a very brief period of time, perhaps two or three weeks, there was no evidence led to indicate that Mr. Fraser, as a member of the Selection Panel, provided any assessment of the Grievor's work experience. Nor was it suggested that Mr. Fraser was in a position to provide adequate advice of this kind, given his rather limited contact with the Grievor. Further, it was agreed by the parties that no member of the Selection Panel consulted the personnel file or performance appraisals, if any, of any of the candidates. No evidence was led with respect to the experience or qualifications of the incumbent, Mr. Ho. .At the time of the competition, Mr. Ho was serving as a PO2 in an acting capacity. Although it is difficult for this Board to determine whether the 8 fact that Mr. Ho was serving in such a capacity worked to his adYantage in the competition, t~e implications of his then current status for the way in which the competition should have been conducted is a point to which we wish to return. For the Grievor's part, the Grievor was, at the time of the competition, serving' as a shipper/Receiver Lead Hand, Clerk 3 Supply. On a number of occasions, however, the Grievor had served as a PO1 in a secondment or training capacity. According to the Grievor's evidence, on at least one occasion during one of these assignments, the Grievor performed in an environment normally staffed by a PO2 in the absence of the then serving PO2. On this basis, the Grievor submitted that he had previously served, in effect, as an Acting PO2. On cross-examination, .the Grievor's evidence suggested that there were a number of tasks included within the job description of the PO2 which he did not perform on this occasion. Accordingly, it is our view that although the Grievor did not have significant acting experience in a PO2 capacity, he had served, on a secondment basis, in a PO1 capacity for something in the order of a total~ of eleven months. As well, it may be noted that the Grievor i~ad completed a certificate program in purchasing and a.further course in purchasing at Ryerson. ~ Against this background, then, we turn to consider the alleged deficiencies of this competition. We first consider the alleged deficiency concerning the ~coring of the candidates' answers to the interview questions. The Grievor and Mr. Hermanstyne b~,th 9 testified at some length with respect to the nature of the answers given by the Grievor to the various questions and, in Mr. Hermanstyne's case, the nature of the grades assigned by him to the Grievor's responses. ~ The gravamen of the complaint with respect to the scoring process is that the expectations of the Selection panel with respect to the kinds of answers required of candidates were too precise. Thus, for e~ample, the Grievor lost points when, in answering question four, he failed to refer to "selection/evaluation criteria" or to "specialized delivery and instructions". Too much significance was attached, it-was argued, to variations in response which were not of great consequence. Thus, it was argued, the Grievor must obviously understand that there are often particular "delivery instructions" and accordingly, the fact that he may not mention this in response to question four should not be a consideration of great moment. our own view is that we do not find it possible to take substantial exception· to the nature of the interview schedule devised by the Selection Panel nor to the manner in ~hich the answers were graded. We do appreciate that the significance of differences between candidates on their scores with respect' to interviews of this kind can be exaggerated. Indeed, we think this is all the more likely to occur where, as in the present case, the interview turns out to be virtually the exclusive source of information concerning the capacities of the candidates. Nonetheless, we are bound to say that the interview questions 10 appear to be carefully and thoughtfully designed in such fashion as to be relevant to the task of assessing candidates for appointment to the position of PO2. Further, apart from our concern about placing information of this kind in the context of a broader range of information concerning particular candidates, we cannot find fault with the suggested "expected answers" to be found in Exhibit 8 and the manner whereby points were assigned by members of the Selection Panel to the responses of particular candidates. It is always possible, of course, to refine or "fine- tune" interviewing and evaluation strategies of this kind. In our view, it is appropriate for this Board to resist the temptation to do so in circumstances, such as these, where the interview schedule appears to represent a good faith, conscientious and, indeed, successful attempt to devise a series of relevant ,questions together with a fair and even-handed method of assessing the quality of the responses of the candidates. " on the other hand, we are of the view that the failure of the Selection Panel to systematically consult the personnel files, performance appraisals, if any, and the previous' supervisors of.the candidates constitutes a serious defect in the manner in which this competition was conducted. Though we appreciate the importance of a well-designed interview process and of the information concerning the capacities of the candidates produced by such a process, we are at the same time unreservedly of the view that such information must normally be placed in the context of a broader range of 11 information concerning the qualifications and experience of candidates. As will be seen, this point has been made and emphasized on many occasions by previous panels of-this Board considering-competition grievances. There are two'considerations that lead us to the conclusion that the gathering of a broader · range of information is especially important in the present case. First, we note that one of the c~ndidates, indeed the successful candidate, was'at the time of the competition serving in an acting capacity in the position for which the candidates werecompeting. We ~hink it especially important that. the competitions.process is explicitly designed, in such a circumstance, to avoid the granting of an advantage to the candidacy of a uandidate serving in an acting capacity. Otherwise, of course, the critical promotion decision, in effect, will be the employer decision to appoint a particular individual to an acting assignment. Thus, we believe it to be especially import'ant in a case such as the present that the interview schedule and scoring system be designed in such a way as to not offer an advantage to the person serving in an acting capacity. .Parenthetically, we note that we do not understand this to be a problem in the present case. Further, where one of the candidates currently serves in an acting capacity, we believe that it is especially important to ensure that the decision-making process is, and is seen to be, scrupulously fair in its gathering of relevant information. With this end in view, it is important that the previous work experience of the candidates be carefully considered and, that the Selection Panel consult personnel files, 12 performance appraisals and similar material, if available, and engage a ~process of consulting a reasonable sample of referees and/or the present and previous supervisors of the candidates in question. A second consideration from which we draw support for the conclusion that the consultation of a broader range of materials concerning the work experience of the candidates in the present case arises from the fact that at least two of the candidates, ~the incumbent and the Grievor, have very long track records with the Employer. In our view, and we believe this view is consistent with the views frequently expressed by previous panels of this Board, the quality of the previous work experience of candidates ia a highly material consideration in an exercise of this kfnd. Moreover, from the point of view of perceptions of fairness, it must be considered to be surprising, at the very 'least, to candidates that work records of as long as twenty years are considered by the Employer to be irrelevant in making a promotion decision of this kind. No doubt this sense of unfairness is intensified in a case such as the present where, although the Grievor's prior supervisors were not consulted, those of the incumbent were. In short, then, we view the Employer's failUrei~to consult personnel files and evaluations and present and previous supervisors to be a significant deficiency in this competition° The difficult question which then arises is Whether a deficiency of this kind is of sufficient magnitude to justify the grantingi'of 13 the relief sought in the present grievance - the re-running of the competition. Resolution of this point requires us to give careful consideration to a number of previous decisions of panels of this Board rendered in similar circumstances. Understandably, the Union has, in its submissions, placed emphasis on a series of decisions of this Board in which various panels of the Board have indicated that there exists within the: Board a consensus with respect to the criteria by which the success of competitions such as the one at issue in the present case are to'be judged. A clear statement of these criteria is to be found in the following passage from the Board's decision in Marek (414/83): "From the evidence at our hearing, it is clear that the decision to select the successful candidate was made on the basis of the application forms and the interviews, without any recourse to personnel files or candidates' supervisors. The successful candidate had been doing the job involved for three years on a contract basis and was known well by the interviewers. Indeed, Mr. Clark testified that he had been told by his superiors that he could not consult personnel files, and it was his practice never to call candidates' supervisors. It is hard for this Board to understand how this could occur, in view of the repeated direction this Board has given on the need to consult personnel files and candidates' supervisors, particularly when one of the candidates only is known to the interviewers--see, for example, MacLellan and DeGrandis, 506/81, 507/81, 690/81 and 691/81, wherein the jurisprudence is summarized at pages 25 and 26: The jurisprudence of this Board has established various criteria by which to judge a selection process: 1. Candidates must be evaluated on all the relevant qualifications for the job as set out in the Position Specification. 2. The various methods used to assess the candidates 14 should address these relevant qualifications insofar as is possible. For example, interview questions and evaluation forms should cover all the qualifications. 3. Irrelevant factors should not be considered. 4. All the members of a selection committee should review the personnel files of all the applicants. 5. The applicants' supervisors should be asked for their evaluations of the applicants. 6. Information should be accumulated'in a systematic way concerning all the applicants. See Remark, 149/77; Ou~nn, 9/78; Hoffman, 22/79; Ellsworth et al, 361/80; and cross, 339/81." The r~tionale underlying the Board's imposition of requirements of this kind in its interpretation of the pertinent provisions of~the Collective Agreement was clearly set forth by the Board in Ouinn (9/78), where the Board stated at pages 7 and 8 that: "the employer must employ a process of decision-making designed to consider the relative qualifications and ability of the candidate in a competition which'will ensure that sufficient relevant information is adduced before the decision-makers in order that they may make their comparisons in the confidence that they are able to thoroughly and properly compare the qualifications and abilities of the competing applicants." At a later point in the same decision, the Board stated at page 10 that: "the process must be designed to elicit in a systematic manner sufficiently comprehensive information about each applicant relevant to the qualifications and ability require~ to perform the job in order that a fair and reasonable assessment of the relative strengths of the candidates can be undertaken and the final selection made." On numerous occasions, panels of this Board have acted on 15 these views and have ordered the rerunning of competitions which fail to meet ~these criteria. It will be useful to consider a n,~mher of illustrations of this phenomenon which bear some similarity to the present fact situation. In Christmas (907/86, 908/86), the Board ordered a rerun of a competition in which the Selection Panel had failed to check the candidates' personnel files and had not spoken to the candidates' supervisors. As well, however, the Board was concerned about the scoring method used for the interview. The weighting of two of the questions was thought by the Board to undermine the first two of the criteria set out in the above passage from Marek. Similarly, there are a number of other decisions in which, the Board's concern with the absence of a consultation of personnel files, appraisals and supervisors has been coupled with a concern about deficiencies in the interview process itself.. Reruns of competitions were ordered' in such circumstances in Leslie (126/79), Fazzolari (1244/84, etc.), McNamara (272/81), and Hoffman (22/79). It is not our view, however, that the Board's decisions in these cases can be read as ~uggesting that it is critical to the outcome that the Board wa~ able to find that, in addition to the failure to consult the usual sources, the interview process itself was flawed. Indeed, in some of these cases, the obvious concern of the Board related to the failure to consult than to any deficiencies in the interview process. Thus, in Hoffman (22/79), the only problem with the interview was that the Board had difficulty seeing the relevancy of one of the questions asked by the selection committee in the '16 interview. The Board went on to indicate, however, that it was greatly concerned by the absence of any consultation of personnel files and supervisors. It seems very unlikely that it was critical to the Board's decision to order a rerun of the competition in that case that it was able to also find a flaw in one of the questions Qn the interview schedule. As well, it must be noted that the Board has ordered rez~ns in cases where the exclusive problem with the process related to the selection committee's failure to consult personnel files, appraisals or supervisors. In Alam (735/85), for example, the Board came to the conclusion that failure to consult these sources was a serious problem. The Board went on to note that the grauity of this defect was increased in a situation, such as the present case, where one or more members of the selection committee have some familiarity with the work of one of the candidates. The Board observed, at page 10, as follows: There can, therefore, be no serious question that, having i regard to the jurisprudence of the Board, the competition conducted in this case is flawed. The selection panel did not consult personnel files, performance appraisals or the supervisors of the candidates. Indeed in the circumstances of this case there is even greater reason for finding this competition to have failed to measure up to the required standards. Although the selection panel did not consult the supervisors of the unsuccessful candidates one of the members of the panel, Mrs. i Hounslow, was the successful candidate's immediate supervisor. Mr. Barrett was her indirect supervisor. Therefore, by virtue of that fact the panel itself had i' the benefit of certain information about Ms. Sokoloski's abilities which it did not have with respect to any of the other candidates including the grievor. That fact alone is sufficient to justify our conclusion that the i competition was fundamentally flawed. ~ The Board went on to note that there was a further problem with this competition inasmuch as the incumbent was serving in the position subject to the competition on an acting basis for a period of time. In the Board's view, given the manner in which the competition was designed, this gave the incumbent an advantage. in ordering a rerun of the competition, the Board wa~ careful to note that the new interview should be designed in such a way as to avoid the granting of an advantage of this kind to the incumbent. In Skagen (1934/87, 1936/87), the facts were strikingly similar to those of the present case. The Board was satisfied in that case that the interview itself was designed and implemented in a satisfactory manner. The selection committee had failed, however, to consult personnel files and the supervisors of the various candidates. The Board observed, at page 10, that "there is nothing in the evidence to suggest that consideration was given to the issue of whether the past work. performance of an applicant might offset, at least to some degree, a poor showing in the interviews. Although the Board went on to observe that defects of this kind would not necessarily lead to a conclusion that the competition should be rerun, the Board further indicated that in the present case it could not be "certain" that an evaluation of the prior work experience of the candidates might not have had an impact on the decision-making process. In the light of that uncertainty, the Board ordered that the competition be rerun. 18 Thus, it appears that there is a substantial line of previous decisions of the Board, upon which the Union relies, in wl~ich defects of the kind present in this case have persuaded the Board to order a rerun of the competition in question. Further, it must be noted that those decisions appear to place no burden whatsoever 9n the Grievor to establish, as a prerequisite of obtaining re2Lief in the form of a rerun, that if the competition is rerun, the Grievor is likely to prevail. It is apparently sufficient for the Grievor to establish that the information gathering process of the selection committee suffered from a fundamental flaw'. For~its part, the Employer argues, however, that there are other previous decisions of the Board which provide support for two propositions upon which the Employer relies. First, it is argued Dy the Employer that in any case where, as here, the Grievor enjoys less seniority than the successful candidate, the Grievor must, as a condition of obtaining relief, demonstrate to this Board that he or she has "superior" qualifications and ability to perform the required duties, thus meeting the criterion for appointment set out in Article 4°3 of the Collective Agreement. More specifically, the Employer relies on the decisions in Saras (139/79) and Remark (149/77), for the proposition that a burden of this kind should be imposed upon the Grievor in the present case. In our view, however, the key to understanding the decisions of the Board' in those cases is that the Grievor, in each instance, was seeking appointment to the position in question, rather than a m.~re rerunning.of the competition. It is not surprising that, in 'the 19 face of such a request, the Board concluded that the criterion set out in Article 4.3 must be met on the evidence led before the Board itself. In the present case, our concern is limited to determining whether or not the selection process was an adequate one, in all the circumstances. 'The Grievor does not have the burden, in such a case, of establishing that he or she was, in fact, entitled to the appointment in question. Indeed, if the Board adopted a policy of imposing a burden of proof of this kind on employees having less senioritY, the practical consequence would be that junior employees. would face a greater hurdle in trying to ensure the fairness of competitions in which they participate than would their seniors. A more s~bstantial obstacle to the relief sought by the Union in the present case, however, is suggested, by the second proposition advanced by the Employer.' The Employer argues that there are a number of previous decisions of the Board which suggest that the kinds of defects present on the facts of ~his case have been held by the Board not to be fatal and have not resulted in a rerunning of the competition. Accordingly, it is necessary to consider these previous decisions of the Board and their possible applicability to the present context with some care. As will be seen, it is our view that each of these decisions can be distinguished, on their facts, from the situation before this panel of the Board. In Sedore (250/83), the Board found that the interview process 20 in question was satisfactory. The six candidates scored on a range from a top score of 228.38 down to the score of the Grievor, who was a distant and last sixth at 91.4. The panel then proceeded to pursue further the top three candidates identified by the inte~Tiew process and reviewed their files. The file of the Grievor was never reviewed. Th~ Board in this case concluded that, given the disparity in the scoring on the interview, they could not come to the conclusion that the result could have been different if personnel .files, etc. had been consulted. With respect to the - present case, it is our view that we cannot come to the conclusion' that there is such a great disparity on the interview scoring that ~ it would be impossible for the Selection Panel to come to"the conclusion, after appropriate consultations, that the work experience of the candidates might lead to a different ordering of them. In Moore (1051/86), although the Selection Panel did inot consult the current and previous supervisors of the candidates,.the Panel did review personnel files which included performance appraisals. The Board concluded that this consultation of the files distinguished the facts of the case at hand from previous decisions of the Board in which orders had been granted to rerun competitions. Further, the Board indicated that in the unique circumstances of that case, it was satisfied that consulting supervisors would not have made a difference' in the result. ! In the present case, of course, it appears that no attempt was made by the Selection Panel to consider the work record of the Grievor in the course of this competition. We have before us no factual basis for coming to a conclusion that an examination of'the prior experience of the candidates could not make a difference, i In Chiasson '(262/79), the panel failed to consult' th~ personnel files prior to the interviews. After the interviews, ~ process in which the incumbent was ranked first and the Grievor was ranked third, one member of the panel consulted the incumbent's supervisors and~ learned that she was viewed as being a~ "outstanding employee". Although no formal consultation was mad9 of the previous supervisors of the Grievor, the other member of th~ Selection Panel was in fact someone who had been in the position of supervising her for a significant period of time and it was made evident in the course of the proceedings before the Board that thi~ individual'did not have an enthusiastic opinion of the Grievor's work. Thus, in the Board's view, the evidence before the Board established that if the selection panel had systematicall~ consulted the personnel files and the previous supervisors of th~ incumbent and the Grievor, this cOuld only have favoured th6 incumbent's case. Again, we view the facts of the Chkasson cas~ to be materially different from those before this panel. We haveI no reason to believe that a comparison of the personnel files andi the evaluations of supervisors of the incumbent and the Grievor would have favoured either of these two candidates. 22 In Strazds (88/83), the problem was the reverse of that in Chiasson in the sense that although the personnel files and appraisals were not consulted, the apparent chair of the committee did consult the Grievor's current supervisor and satisfied himself that the committee's impression, which was that the Grievor lacked certain qualities required for the position, was borne out in her previous work experience. The Board in Strazds concluded that there was no need to rerun the competition, notwithstanding the presence of some deficiencies in the process. Again, as in the case of Chiasson, Strazds is a case in which the selection panel did make an attempt to assess the significance of the previous work experience of the Grievor. In this respect, these two cases are unlike the present case. The Employer also relies on the decision of the Board' in Polack (1120/86), in which, once again, the selection panel'did not consult personnel files and appraisals. The Board noted that the Grievor scored ninth out of fourteen candidates on the interviews. Further, it appears that the Grievor's supervisor was, in fact, a member of the selection panel. Further, in a proceeding before this Board, the Employer led evidence to show that the previous work experience of the Grievor was quite unsatisfactory. On this basis, and in reliance on the previous decision of the Board in Strazds, the Board concluded that there was no need to rerun 'the competition. Again, Polack is distinguishable from the presi~nt case. This Board has no reason to believe that the evidence 23 concerning the Grievor's past record of employment would be unfavourable. Finally, the Employer relies on the decision of this Board in Saras (457/85). In that case, the selection committee failed to consult personnel files. There were, as well, other deficiencies in the selection process that the panel did not consider to be of grea~ importance. With respect to the failure to consult the files, it was the Board's view that there would not be any information in the file that'would be of assistance to the selection committee. The only information that would be recorded in the personnel file that had not been drawn to the attention of the selection committee, in the Board's view, was information concerning certain ~emporary assignments that the Grievor' had previously undertaken. The Board felt that this information would not be of particular assistance to the selection committee and noted further, that the application form included a space in which information of that kind could .well have been included by the Grievor. For these and for other reasons, the Board concluded that whatever deficiencies there were in the process, there was no need to rerun the competition. Again, it is our view that the Saras decision is distinguishable from the present case. In our view, it would have been highly material for the selection ~ommittee to attempt to obtain an accurate impression of the quality of the Grievor's previous work performance during a Period of employment stretching back almost twenty years with the present Employer. 24 We are satisfied, then, on the basis of the previous decisions of the Board relied upon by the Employer, that the Board ¢~oes indeed take the view that the presence of deficiencies in the design of a particular competition does not automatically lead to the conclusion that the competition must be rerun. On the other hand, a review of all of the authorities described above strongly suggest that where the Board is not in a position to come to the conclusion that the rerunning of the competition will be pointless or could not possibly lead to a different outcome, there appears to be a strong consensus of the Board in favour of the rerunning of competitions in cases where the selection committee has focused its attention almost exclusively on the interview process itself and has ignored the previous work experience of the candidates. As we have earlier indicated, we believe that there is all the more reason to adopt such a view in a case such as the present where there are two additional factors present. First, the Grievor is an employee of many years standing. It no doubt appears to the Grievor and it certainly appears to us to be quite unfair to ignore the prior record of a long-~tanding employee in a competition of this kind. Second, we have noted above that the successful candidate was, at the time of the competition, currently serving as an acting Po2. That is to say, the incumbent wa9 acting in,the position which was the subject of the competition. We think! it especially important in such circumstances that the competition be conducted in a manner which is consistent with the guidelines outlined by the Board on so many previous occasions. Where a 25 deficient competition is followed by the appointment of the candidate who is currently acting in the position in question, there is a very real risk that the competition will be perceived to be unfair by the unsuccessful candidates and there is reason to believe that there is a very real risk that those perceptions will qorrespond with reality. In such cases, then, it is all the more important that the decision-making process is based on. an information gathering exercise which is both systematic and appropriately thorough. For the foregoing reasons, then, we are satisfied that the appropriate remedy in the present case is to order a rerunning of the competition. Accordingly, we allow this grievance and order a remedy similar to that ordered in previous cases of this kind: 1. The Ministry must.hold another round of interviews for all those applicants'interviewed in the flawed process and who still wish to be considered for the aPPointment. 2. The interview panel must consist of three persons, none of whom participated in the earlier interviews. 3. The interview panel must establish, a series of questions which are relevant and will offer adequate information to enable a judgement concerning the candidates' possession of the selection criteria. The questions shall be designed in such a manner as to not provide an advantage to the incumbent based on his experience working in the position in question. 4. The interview panel must consult the personnel files and performance appraisals, if any, of all of the candidates, and consult with at least one supervisor .familiar with the work of each candidate. 5. The interview panel should not take into account any information acquired subsequent to the initial selection process and, more particularly, shall not consider'work experience of the candidates subsequent to the initial competition. In the event that the Grievor is successful, we order that he be compensated for any loss in wages and benefits which result from this fatally flawed selection process. As well, we retain jurisdiction to deal with any question that may arise concer~ing the implementation of this Award. Dated at Toronto, Ontario this 31s~ day of January, 1991o J. D~li~4cCamus, ~e-Chairperson W. Lobraico, Member