HomeMy WebLinkAbout1989-0053.Weekes.91-07-05 ONTA RIO EMPL OYI~S DE LA OOURONNE -
CROWN EMPLOYEES DE L 'ONTAFI[O
GRIEVANCE C,OMMISSION DE
SETTLEMENT REGLEMENT
BOARD' DES GRIEFS
180 OUNDAS STREET WEST, SUITE 2~00~ TORONTO, ONTA]q{O. M5G IZ8 TELEPHONE/TELEPHONE: (4 ~6) 326- 1358
'tSO, IRUE OUNOAS OUEST, BUREAU 2100. TORONTO (ONTAR$O). M5G 1Z8 FACSIM/LE/T~L~COPlE ,. (4~6) 326-~396
53/89
IN THE M~TTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ~CT
Before
THE GRIEV~%NCE SETTLEMENT BOARD
BETWEEN
· OPSEU (Weekes)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Correctional Services)
Employer
BEFORE: M. Gorsky Vice-Chairperson
J. McManus Member
M. O'Toole Member
FOR THE C. Dassios
GRIEVOR Counsel
Gowling, Strathy & Henderson
Barristers & Solicitors
FOR THE J. Saunders
EMPLOYER -Counsel
Hicks, Morley, Hamilton, Stewart, Storie
Barristers & Solicitors
HERRING January 12, 1992
ORDER
At the opening of the hearing with respect to this matter,
counsel for the parties filed with us Minutes of Settlement,
annexed hereto, and requested that the same be made an order of the
Board. We so order. ·
Dated at Toronto, Ontario, this 3fa day of February992.
M. Gorsky-Vice Chairperson
J. McManus-Member
M. O'Toole-Member
The Grievor, Anthony Weekes., file~ a grievance on February
8, 1989, in which he claimed that:
The Employer is in violation of Article 4.3 of the
collective agreement. The EmploYer failed to assess my
qualifications and abilities in a fair and unbiased
way°
The settlement, requested was~
For an independent adjudicator to re-mark my written
' test of January 10, 1989 for the classification
o£ficer's competition cl-10tg-88'lsic, l.
The job. competition referred to~was tora Classification Officer
position at the Mimico Correctional Centre in Toronto.
On or about December 5, 1988, an opportunity, bulletin
announcing competition CI-1059-88' was.posted inviting applicant~
to apply for the position (Exhibit 2~. The qualifications listed
in Exhibit Number 2 were=
(1) Sound knowledge of inmate classification,'(2l
Temporary Absence Pro,ramie, 13) institutional'
operation and administration, together with (4)
significant experience in'a correctional setting;
ability to.communicate effectively both orally and in
writing with a variety of individuals such as inmates,
staff, professionals, employment agencies, etc. (6)
'Basic knowledge of intervention practices, i'.e.
interviewing techniques. (7) Ability to establish'and
maintain goos interpersonal relationships, (8)
satisfactory work performance and at=endance.
The ~rievor was 'one of 14 ~ersons who applied for the posted
position. The resumes requested from and submitted by the
applicants were reviewed by the repreaen[atives of the ~mployer
to ascertain whether they had institutional experience, knowledge
2
of the'Ministry and knowledge of the classification policies and
procedures which were thought to be necessary in order to carry
out the duties and responsibilities of the posted position. The
Grievor was one of the 13 aPPlicants who were found, to have met
the requirements of the preliminary screening test.
May Benjamin-Kent, a Social Program Administrator with the
Ministry, and Jim Morris, an Area Personnel Administrator with
the Ministry, who were in charge of the competition, decided,
Because of what the~ considered to be the large number of
applicants who had'passed the first of the pre-screening tests,
to conduct a second'-Pre-screening exercise in the form of'a
written test. Only' those applicants who' 'passed" the test would
be considered during.the final phase of 'the competition: a
subsequent orai interview.
The.written pre-screening test was prepared by M~. Benjamin-'
Kent who has been an employee of the Ministry for over 10 years "
and holds a Masters Degree in Applied Criminology and an Honours
B.A. in.Psychology. Ms. Benjamin-Kent testified about the
formation, administration and marking of the test.
Before the written test was administered, Ms. Benjamin-Kent
and Mr..Morris decided that the pass mark to be obta'ined by a
.candidate was to be 65 out of 100 marks. Those candidates who
attained a score or.at least 65 marks would be permitted to
3
proceed' to the oral interview. Four of the thirteen candidates
achieved a written test score of 65 or above, the Grievor not
being one of them, having been initially assesed as having
obtained a score of 55.5 marks.
On the first day of the hearing, the Board made an oral
order to bifurcate the hearing, the first issue to be dealt with
being whether the Grievor w&s entitled to proceed to the second
stage of the competition being the oral interview. It was agreed
by counsel that this was the first issue that had. to be decided
bY the Board. It was also agreed that in order for the Board to
rule on this issue, it was necessary to first decide whether-the
Employer had carried out its responsibilities under Article 4.3
of the collective agreement in a proper and fair manner as it
related to the formation, administration and marking of the
written test prepared by Ms. Benjamin-Kent.
The Board ruled, and the parties agreed, that if its
decision was that the Ministry had carried out its
responsibilities in. a proper and fair manner then the grievance
would be dismissed. If it was held that the Ministry had
violated the Collective agreement as a result of its formation,
administration and marking of the test, then the Board would
reconvene to consider the nature of the remedy. One of the
remedies that was suggested as being appropriate in the event
that the issue was decided in favour of the Grievor was that he
4
be given an interview that he claimed had been improperly denied
to him. Counsel for the Union also took the position that it was
open to the Board, should the issue be decided in favour of the
Union, to consider further evidence with respect 'to the
qualifications and. ability of'the candidates and to render a
decision thereon. It was the position of the Onion that if the
Grievor s9cceeded during the first stage of'the bifurcated
hearing,$then the Board ought to hear evidence as to the relative
qualifications and ability of the Grievor and the incumbent and
if"it was found that the Grievor's q~alifications, and ability
were greater-than the incumbent and that their qualifi6ations and
abilitie~ were not relatively equal', then the Grievor should be
awarded the-position notwithstan4ing t~e incumbent's greater
senioritY. At this stage, it is unnecessary to deal with any
matter other than the issue of wh~ther the Employer had carried "
out its responsibilities in a proper and fair manner under
Article '4.3 which is as follows:
'4.3 .In filling' a vacancy, the Employer should give
primary consideration to qualifications and ability to
perform the required duties. Where qualifications and
ability are r~latively equal, length of continuous
seniority shall be a consideration.
It was the position of the Union that the Employer' had not
given "primary consideration to qualifications and ability to
perform the required duties." The process.was said to be
severely flawed because the written test allegedly only
effectively ex~mined .one of the eight qualifications set out in
the Opportunity Bulletin (Exhibit 2): the candidates' technica1
5
knowledge of in___-~__te classification. Counsel for the Union
submitted that most of the qualifications required could not be
assessed by means of a written test and that in order to do a
complete review an interview would be required along with a
review of personnel files, including performance appraisals and,
as well, information would have to be. sought from the candidates'
~upervisors with respect to their qualifications and abilities.'
It was alleged that these steps had not been taken. Although
counsel for the Union also submitted that the competition was
also flawed because the Employer'had allegedly not given any
consideration to seniority, we fail to see how this could have
asisted the Grievor, as the incumbent had greater seniority.
Because the written test Was said to measure technical
knowledge onlY, it was ar~ue~'that it was unfairly biased'toward
candidates who had performed the job on a secondment Basis, as
had the in'cubent. This unfairness was Sai~ to be amplified as
appointments of persons to temporary positions under six months
in duration are not grievable under the collective agreement and
not reviewable by the Board. There was no evidence to indicate
that the appointment of any candidate to the posted position on a
secon~ment basis was done in bad faith or for the purpose of
furnishing them with an unfair advantage, or that such
appointment was for. other than the attainment of legitimate
government/business purposes.
6
The "passing" grade Of 65 out of 100 was said, by the Onion,
to represefit an arbitrary threshold which was only brought to the
attention of the candidates on the day of the exam.
It was also submitted by the Union ~hat the reason for only
granting an interview to certain applicants, which was sa~d by
the.Employer to be based on grounds of efficiency, could not
apply where there were only thirteen applicants for
consideration,
The alternative position of the UniOn, should the Board find
that the written.test employed in this case'was an adequate
method of assessing the qualifications and abilit~ to perform the
required duties of the.posted position, was that'the marking of
the test was inconsistent and did not accurately measure the
relative ability of the candidates, it was also submitted, as a
further alternative'position, that a number of the questions were
very difficult to.answer because "any number of answers could fit
(although.they were marked correct only if they matched the
Employer's "ideal" answers) and/or the answers could could not be
found in the Source'materials,"
It was the position of the Employer that the competition
process.was fairly and reasonably administered and that its
conclusions ought not to be altered. -Counsel for the Employer
submitted: ~.
The test was [prepared] by Ms. Benjamin-Kent and was
intended as an instrument or tool that was objective,
uniform and standardized for all candidates. It was to
focus on the knowledge and skills relating to the
position specification and assess the minimum skills
which the candidates would require to perform in this
position.
The position of the Union,. in response to this statement,
was that whatever the intention of Ms. Benjamin-Kent in preparing
the test, in the result, "the test was anything but such an
instrument or tool."
Counsel for the Employer, in support of his Position that
the test was an instrument or tool that was objective, uniform
and standardized for all candidates," and that it focused "on the
knowledge and skills relating to the position specification and.
[assessed] the minimum skills which the candidates would require
to perform in this position," noted that the only evidence before
the Board about the 'formation, administration and marking of the
test was presented by Ms. Benjamin-Kent, who is a senior Ministry
.employee whose evidence was "exhaustively reviewed by Union
counsel." Because of these factors, he concluded that, "the fact.
still remains that no other evidence was called to rebut or
challenge her conclusions."
Counsel for the Union replied that Ms. Benjamin-Kent's
evidence, in .many respects,' lacked credibility. This submission
was said to be based on a review of the documentary evidence, her
cross-examination, and the testimony of the Grievor. It was
submitted that, in these circumstances, it was incumbent upon the
Ministry to call Mr. Morris to prove its.case. We were invited
to draw an adverse inference as a result of the failure to'call
Mr. Morris: 'that Mr. Morris would not have been of assistance to
the Employer if he had testified."
The test was composed of'eleven questions worth seventy-five
marks and a single essay question worth twenty-five marks, made
up of ten marks for conten~ five marks for spelling, five marks
.for granunar, and five marks for composition. A copy of the test
is annexed as Appendix 'A.#
Ms. Benjamin-Kent and Mr. Morris administered the written
test to all thirteen candidates at the same time in the same
room. After the tests had been completed, Mr. Morris took. each
one of them and removed the instruction sheet which contained the
-candidate's name. He then proceeded to number each instruction
sheet with an identical number which was placed on the.first
answer page of the test. All of the tests were then forwarded to
Ms, Benjamin-Kent for marking. This' system was said to prevent
Ms. Benjamin-Kent from knowing who wrote any test that she
marked. Ms. Benjamin-Kent marked each question at the same time
so that, for example,' all the answers to q~.es~ion one were marked
before any of the answers to question two were marked.
9
The four candidates who "passed" the written test were then
given oral interviews of approximately forty-five minutes each in
front of a three-person panel composed of Ms. Benjamin-Kent, Mr.
Morris and Robert Morris (no relation) 'a Deputy Superintendent
with the Ministry. At the end of the oral interview process the
unanimous decision of the panel was that Eric Mulders should be
the successful candidate fo~ this posting. Mr. Mulders had
higher seniority than Mr. Weekes.
Counsel for the Employer referred to R~r~C~i (256/82) where
it was held, by arbitrator Swinton, at p.7, that an employer was
not required to interview all applicants in a job competition
whatever their suitability. The Board also noted that questions
of efficiency and cost may require some screening of
applications. One type of pre-screening that might legitimately
take place would be based on only allowing those applicants to
pass through the initial screening process who had met the basic
qualifications for the position. Where "the pool of apparently
qualified applicants [was] s° large that a ranking of the most
qualified will have to occur ... only those with the highest
scores will be called for an interview and further
consideration." In both aspects of the Screening process "these
qualifications must be reasonably related to the. job in question"
and the ranking must be reasonable "in the sense that each
candidate's qualification'must be reasonably evaluated."
l0
The Onion did not take the position that there was an
obligation on the Employer to interview all candidates, but
submitted that it "must decide who to interview by measuring
relative ability of the Candidates by objective standards." This
does ~ot differ from what the BOard said in the moreck~ case.
Both counsel referred to KuyntJ~ dna T~rm~n 920/85;
Counsel for the Onion referred to pp. 5-6:
If the eventual decision about who gets a job is to be
based on relative qualifications and abilities, it
follows that all'steps leading up to that decision must
also satisfy the requirement ~hat they lead to valid
and relevant information about qualifications and
abilities being brought to the attention of the
selection Board. If the pre-screening decision screens
out a better qualified candidate, the eventual decision
.cannot help but be faulty. Therefore, while there is
clea~ly no right to an interview in the collective
agreement, the nature of the eventual decision to be
made requires that the pre,interview screening be done
in a comprehensive and f&ir manner.
We can agree that the pre-interview screening 'must be done
in a comprehensive and fair manner. But this does not mean, as
the K~yntje~ case appears to suggest, that the pre-interview
. screening has not been done in a.comprehensive and fair manner if
the Board'concludes that its decision, on the evidence, would not
be the same as that of the employer. The standard imposed on an
employer under art. 4,3 is not one of perfection. At this stage,
we are not concerned with the relative qualifications and
abilities of the Grievor and the incu~ent, but with the question
of. whether the pre-interview screening was performed ina
11
comprehensive and fair manner and neither ¢ounsel'took issue with
the statement of the Board in relation t° that subject in the
K~yn~j~ case.
Counsel for the Onion also relied on O,~inn (9/7B), where the
Board stated at pp~7-8:
...it is 'important to emphasize that in meeting the
obligations under that article [4.3] the employer must
employ a p~ocess 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
the abilities of the competing applicants.
Cbunsel for the Employer argued that the Qu~nn case is
different from the case before us and therefore has no
application. He further argued that the Ou~nn case, unlike'the
case Before us, did not deal with a'pre-scFeening process but
with the "complete selection process."
Although the O~liO~ case did deal with the complete selection
process, the quoted comments are applicable to the case of pre-
screening, as will be explained below. In the abov~ quotation
from the Kuynt4es case', the Board noted that= "if the eventual
decision about who gets a job is to be based on relative
qualifications and abilities, it follows that all steps'leading
up to that decision must also satisfy the requirements that they
lead to valid and relevant information about qualifications and
12
abilities being brought to the attention of the selection Board."
If the written test was structured or administered or marked in a
manner so that valid and'relevant information about
qualifications and abilities would not be brought to the
attention of the selection board, then ~hat board would not be
able to carry out its obligations under article 4.3. We
e~phasize that the responsibility of this Board.is not to
substitute its judgement for' that of the Employer, but to ensure
that it has'carried out its responsibilities under that article.
Counsel for the Union also relied on Cook (39/44). In that
case, which concerned a competition for the position of Unit
Supervisor at the Guelph Correctional Centre, which carried a
classification of Correctional Officer 3,.the competition was
conducted'in three stages. At the first stage the applications
were screened on the basis of experience, and two applicants were
rejected because of' their limited experience. The second stage
consisted ~f an examination..Of the 20 who'wrote, 11, including
the grievor,'were rejected. The remaining 9 were given
interviews and 3 of those were selected as the successful
candidates. The grievor, as in the case before us, complained
that he had been improperly denied an opportunitt for an
interview. At pp.5-6, the Board dealt with the obligations on
management in "determining whether [the applicants] were entitled
to an interview": Did supervision take into account all the
qualifications reasonably related.to the job in question?"
13
(Emphasis in original.)
At p.? of the g~]~ case, the Board concluded that it could
not find that the Grievor had "had his qualifications and ability
fairly evaluated and compared with the other applicants." The
examination was found to be defective as it did not pc=mit a
comparison of most of the qualifications set out in the position
specification and job posting. In that case, the test examined
knowledge, it did not assess and compare ability and experience.
It was held that the Grievor was entitled to an interview so that
his qualifications could be more properly evaluated.
Although a great many words were used in the case before us,
the real difference between the parties concerns the nature of
the responsibilities imposed upon the Employer by article 4,3 of
the collective agreement. Even where an employer is permitted to
engage in a variety of pre-screening devices to eliminate some
a~plicants as the selection process proceeds through a number ~f
stages, such screening devices as are employed cannot alter what
the parties have agreed to in Article 4.3: a pre-screening
mechanism cannot be used as a means of'making an "end-run" around
the provisions of that article.
The nature of the obligation on an employer in. carrying out
its responsibilities+relating to the promotion of employees,
where it is bound by a collective agreement ~rovision in the
14
nature of a competition'clause, such as is found in.article 4.3,
was addressed by the Ontario Divisional Court in C~n~d~n Food &
All~ea Workers Union. T.oca! 175 v. ~=~t Atlantic ~nd P~c~ic Co.
o~ C~n~a T.t~. at ~]., 76 C.L,L.C. 1~,056, leave to appeal to
~.A. refused 13 L,A.C. (2d) 2iln . The nature of the
responsibility imposed on employe~s by the Divisional Court has
been the subject of continuing debate and decisions of the Board
have reflected these differences.
Both counsel agreed that we are bound by the decision of the
Ontario Divisional Court in the A&P case; but they disagreed as
to the nature of the test mandated by the Court. That case was
analyzed in the case of R~ nr~t~,h Cob~mh~ Hou, ing M~n~qemen~
Com'n a~d Services ~m~loye~'s Int'l Un~on~ Local 294 (1977), 15
L.A,C. (2d) 121'(J. Weiler). ~r,.-Weiler, in 2he ~r~t~'~h C~lumb~a
Housing case,.set out what he regarded a.s the Pre-A&P
philosophies which applied in promotion cases., He stated (at
p.124):
In the early reported awards arbi[rators took the
position that the proper review of. management's initial
judgement of an employees' [sic] ability should be
limited to a subjective inquiry wheCher this assessment
was made honestly, in good faith and did not
discriminate between employees. (See ~.9.. R~ Un~ted
~ne W~rker~ r.oca~ ~3031 ~nd C~na~n T~ries' r.td..
Nobe~ Worker~ (1948), 1 L.A.C. 234 (Roach)). While
this approach eliminated gross'abuses of total
management discretion, nevertheless it did not deal
with the situation where management's discretion might
be ho~fl ~d~ yet very wrong. There seems to be no
greater reason.to give management total freedom to act.
in good faith in the seniority field than in the area
of discipline where this posture had been rejected.
15
This early position, identified as the "extreme" management
position, ~as found by Mr. Weiler to have been taken by the board
in the A&P case [(1976), 11 L.A.C. 291 (Brandt)] and to have been
rejected by the Divisional Court.
Later] at p.124 of the R.C. ~o,~jng case, Mr. Weiler sta~ed:
Chafing under this limited review of management's
assessment of employee's ability [sic], the extreme
view from the trade union side urged that as with
discipline, arbitrators should have total freedom to
substitute their judgement for management's whenever.
they disagree_. In other words, the arbitration process
was to offer full. appellate review of management's
initial judgement.
This "union" position was based on the argument that: "there
seems to be no greater reason to give managemen~ total freedom to
· act in good faith in the seniority field than in .the area of
discipline where this posture has been rejected": R.C. Housing at
p. 124. The difference b~ween the-two situations was noted by
Professor.P.C. Weiler in Re Cana8%an Rrgth,rhoo~ o~ Railway
TranspQrt and General Work-r~ and ~. ?.awr-nc- Se~wa3 ~thor~y
(1969), 23 L.A.C. 156, at p. 159:
Decisions about ability in a seniority, context involve
conflicts between two employees for a scarce position,
and are thus somewhat different from discipline
questions.
Moreover, they almost alwaMs involve concrete technical
judgments which are not within the competence of most
arbitrators and are very difficult to convey in the
artificial atmosphere of the hearing room. As has been
said, full review will result in management by
arbitrators, rather than management, and this will not
serve the reasons which justify, the inclusion of the
'ability" limitations on seniority rights.
16
'It appears to us that the so-called "extreme view" favored
by unions is closer to an appeal by way of hearing de novo (a
fresh determination on the merits) than an appeal in the usual
sense, as it will frequently involve the hearing of evidence that
was not considered by the employer, a rare happening in the case
of appeals. This difference is, we suggest, s%gnifiCant and will
be discussed more fuliy later in this award. Cf. ~.C~
case, at p.°126.
The so called "extreme view" favored by unions is the one
that Mr. J. ~eiler, at PP.128-9 of the ~.C. ~o~-~'ng case,
concluded'was held to apply by the Divisional Court in the A&P
case=
In the face of this arbitral opinion,'the Ontario
Divisional Court in the A&P case has ruled~that an
arbitrator must not limit himself to an enquiry as to
the honesty, absence of mala ~aes and reasonableness
.of management's decision, but mu~t compare the
respective skills and qualifications of applicants for
the job in question. In.reaching this conclusion, the
Divisional Court noted that if the parties wanted to
limit full scale review on the merits of management's
decision, "then the parties in the collective agreement
should insure that management's right in this regard is
unfettered."
A number of other arbitrators, including J. D. O'~hea, Q.C.,
in'the case of Re C~n~n Rr~dc~-t4ng Corp.
Association o~ ~ro~dc~,t4ng ~m~loye~, ~a T~cb~:~ci~ns (1980), 26
L.A.C. (2d) 34, did not view the A&P case as directing that a
board of arbitration act as an "appellate body from the decision
of management ....
17
Mr. J. Weiler, at p.125 of the B,C~ Wou~ng case, sets out
another view of the role of a board in promotion cases, said to
have been developed by arbitrators prior to the A&P case:
In the face of these two extreme positions, arbitrators
developed a third, intermediate position between these
two poles. Under this view, the role' of an arbitration
board was to ensure that:
the'company's decision'must be non-discriminatory,
and subject to the terms of the contract
(including the seniority clause) in two senses:
hg~-t. ~n& ~nhias.d. ~nd not ~ct~ated 'ily ~RY
mali~, or ill will dir.cte~ at th- partic,,l~r
p~p~oy,~, aga -,cond, th- m~nag-rial d~cision must
he r~,onah]~, one which a rea-onahle employer
co, ld have r~ache& in th- light o~ th~ ~a~ts
a¥~l~hl-. The underlying purpose of this
interpretation is to prevent the arbitration board
taking over the function of management a position
which it is said they are manifestly incapable of
filling. Yet the managerial discretion to decide
has been limited by the terms of the agreement and
it is the duty of the arbitration board, to ensure
that it is exercised in the light of proper
principles and criteria, that all relevant
considerations have been adverted to, and that ali
irrelevant facts have been excluded from the
process of decision. [Emphasis by'the arbitrator
in the m.C. ~o,,,ing case.]
R~ U.R.W.. r.ocz! 5~3 ~nd Union Carhid, Can~dz ~.td.
(1967), 18 L.A.C. 109 (P.C. Weiler) at pp.117-8.
Governed by-this principle of arbitral restraint,
arbitrators have perceived their role in reviewing
management's decisions on an employees' qualifications
as invol¥ing two enquiries. Initially, the arbitrator
must determine the requirements of the job, and then
against those requirements, assess the reasonableness
standards or criteria used by the employer. Having
made that determination, the arbitrator must then
examine the manner in which the employer applied those
standards to the various applicants for the job
vacancy. (See generally, Brown and Beatty, Canadian
~.aho~r Arhitrztlo~ (1977), at pp.253-60.)
An examination of the a~ove statement discloses that there
18
are four elements in an employer's decision which a board must
review. The first, is the requirement that management's
judgement be exercised in a boD~ ~ide manner. The Divisional
Court in the A&P case did not disagree with such a standard. The
second test concerns the reasonabl'eness of the standards or
criteria used by the employer. As will also be seen from an
examination of the A&P case, this is also a requirement of the
review by the board. The additional requirement of completeness,
in the sense that the action of man&gement be carried 'out in
accordance with "proper principles and criteria' and "that all
relevant considerations have been adverted to', and that all
irrelevant facts.have been excluded from the process of
decision,' (See n.C. Hou~{ng case at p.12§) represents a third
factor in the review - one that we view as also being part of the
approach mandated by the Divisional Court in the A&P case. In the
m~C. ~o~ing case, there is also the reference, which represents
the fourth element in the test, that the decision of management
is a reasonable one which a reasonable employer could have
reached in the light'of th~ available facts.
It is our conclusion that the Divisional Court, in the A&P
case, adopted the standard of review as set out in the U.E.W.
case decided by Professor'P. C. Weiler, and referred to, and
elaborated upon, by Mr. J. Weiler in the m.C. Houa~n~ case at
p.125. It is also our conclusion that Mr.J. Weiler, in the ~
~o~)ng case, misapprehended what ~he Divisional Court had stated
19
in the A&P case, and that the Court's direction to the board of
arbitration was entirely consistent with the intermediate
position set out in the R.C. ~o~s{ng case. At p.131 of that
case, he said:
In conclusion I would adhere to the prevailing consensus
among arbitrators, that the proper scope of arbitral review
of both management's setting standards or qualifications as
well as its assessment of employees' ability should ensure
that (in the words of the arbitrator in Kysor of R~dgetown,
at p.~89):
The judgement of the company must, first, be honest and
unbiased, and not. actuated by any malice or ill-will
directed at the particular employee (or any undue
favour for another claimant for the position) and
second, the managerial decision must be one which a
reasonable employer could have reached in the light of
the facts available. ... By "reasonably", I mean that
the employer's judgement must be one which has taken
into account all relevant considerations and which has
not been based on any factors which are improper within
the scope of the agreement.
It is significant that the reasonableness of the decision
was linked by Professor P,C. Weiler to the question of whether
the employer, in assessing the factors to be considered by it in
arriving at its determination, had done so completely: that is,
by considering all'relevant evidence and discounting all
irrelevant evidence. I have concluded that this is exactly What
was directed by the Divisional Court in the A&P case.
Accordingly, the conclusion arrived at by Mr. J. Weiler in the
R.C, Housdng'case (and, as well, by many other arbitrators), that
the Divisional Court in th~ A&P case had directed the board to
act as an appellate body from the decision of management, where
the appeal is to be in the nature of a "fresh determination on
2O
the merits' rather than a review of the conduct of the promotion
procedures carried out.by, management,' resulted from a misreading
of that case.
The source of the conclusion.requiring the employer to
establish that its decision was correct Was adverted to by Mr.
Weiler at p.126 of the m,C.. Ho,,sing case. He 'cites Brown and
Beatty, C~na~an labOur Arbitration, (2nd Ed.), at pp.258-9.
Although arising infrequently, it has been suggested that
this limited'and narrow'standard of review on the second
component of the employer's decision should not prevail
where the parties have not, either in th~ seniority
provisions or in the management's rights clause of the
agreement, specifically confirmed that the actual
determination of the employee's abilities. Or"qualifications
is to be based on 'the. opinion or judgement" of the
employer .... Rather, it is s~id that the employer must
establish that its' decision was correct.
Be continued at pp. 1~6-7: '
In other words, a minority of arbitral awards have
departed from the policy of arbitral restraint
maintained in, Kysor of Ridgetown [(1967) 18 L.A.C.382
(Weiler)] by distinguishing these cases on the basis
· that the particular seniority clause in question
provided that the assessment of an employee's ability
was to be based.on management's opinion. If such a
qualifying phrase is provided then the principles of
~nion C~rhi~m or Kysor of Ri8getown apply. But if the.
agreement is silent then the arbitrator may review
management's assessment as a question of fact. The
seminal decision espousing this approach is that of
Professor Christie in Re Textil- Work, rs Union and T.~cly
Gait Towels L~. (1969), 20 L.A.C. 3.82 where at pp.383-
4 he observed:
On the other hand, the second question, whether
the employees in this case are "relatively equal"
in the qualifications required by the company is,
under this collective agreement, a matter to be
determined by the board of arbitration. Article
3.01~ which empowers the company to "promote'
etc., is expressly subject to provisions of the
agreement, including Art. 9.06, the seniority
clause, thus it is not enough that the company
satisfies this board that it did not act in an
arbitrary, discriminatory or unreasonable fashion
or in bad faith in applying its own standard of
qualifications. It must also satisfy the board
that it applied the standard correctly in not
adhering to seniority. Where, as in the two. Un, on
Carh~de cases cited above, the right to determine
qualifications is expressly given to management
the power of an arbitration board would appear to
'he limited in respect of this second decision as
well. But such is not the case'here.
The Divisional Court, i~ the A&P case, 'at pp.334-5,
identified those cases where an employer would not.be required to.
go beyond demonstrating its good faith in the administration of
the particular promotion article of the agreement:
If the selection and placement of employees in more
responsible positions is to be solely a management
function, then it is not difficult for the parties to a
collective agreement to set forth the understanding.
Whether management is to be unfettered in such a
decision, or whether'no promotion can he made without
the consent and agreement of the union, are matters
that can form part of the collective agreement.
However where, as here, the collective agreement
states:
9.04 When additional full-time employees'are
required the Company will give preference to part-
time employees on the basis of.seniority, skill
and qualifications for the job concerned and
availability for work.
then it is open to a member of the union to take
grievance proceedings if he or she is of the opinion
that the company has not complied with the requirements ..
of the collective agreement.
It is implicit in the language of the Court in the A&P case
that it is necessary for there to be more than 'an initial grant
22
to the employer enabling it to make the determination; there must
Be a clear indication that the employer had been given'an
,,n~,tt,red discretion, to decide that the vacancy was to be filled
in the judgment of management. This might be found in the
management rights clause or elsewhere~in the agreement, in the
absence'of such an unfettered discretion having been granted to
management,'the intermediate position, as enunciated at p.125 of
the R.~. Hou,~ng case, was the one mandated by'the Divisional
Court in the A&~ case.
Those pre-~ cases, which. Mr. $. Weiler identified, at
pp.126-127 of th~ ~.C~ Housing case, as having departed from the
policy of arbitral restraint, did so on the basis of there Being
a "qualifying phrase" where the "assessmeNt'of an.employee's
ability was to be based on management's opinion."' Absent a grant
of such authority ("if the agreement is silent"), they would hold
that an arbitrator'may review management's assessment as a
qUestion of fact.
The Divisional Court. in the..~, case, identified .the two
cases more precisely. In one case, management was granted the
un~ettered power to make the assessment (at p.33§). The
Divisional Court in A&~ found restrictions on management's power
in that case - indeedi there would have to be, as Mr. Weiler
stated in the R,C. ~o,,,ing case, at p.124, as otherwise "this
arrangement would be tantamount to delegating to management the
power to grant or withhold seniority rights as it sees fit." We
would add that it would make meaningless the reference to the
qualities to be assessed if management could decide upon them
~without being required to demonstrate it had done so properly, in
the absence of specific language permitting it to do so: that
is, without an unfettered.discretion having been granted to it.
Mr. J. D. O'Shea, Q.C., in R~ C~~n ~ro~dc~,t~ng Corp~
~nd Nat~on~l A--oc~t4on o~ ~ro~dc~st%ng ~loye~ ~nd
Technician-, (1980), 26 L.A.C. (2d) 34, stated at p.39:
If the judgement of the Court in the A&P case is read
. without any preconceived opinion as to what the Court
decided, it is readily apparent that the Court did not
direct the board of arbitration act as an "appellate
body from the decision of management on the issue of a
new hire in the face of the seniority decision."
He then quotes extensively from pp.334-5 of the judgment of the
Divisional Court in the A&P case.
The board was of the opinion that the principle upon
which i~ relied did not depend upon the inclusion in
the collective agreement of any special language to the
effect that the employer had exclhsive discretion to
decide that the vacancy was to be filled in the
judgment of management. Reference.was made to the
decision of Mr. Justice Roach actin~ as an arbitrator
in Re C~n~&~n ?na~L~tr4es Li~, I L.A.C. 234 wherein
it was stated: '
In this and every like case where there is
room for honest difference of opinion. If it
appears -- as here admitted to be a fact --
that the employer has acted honestly, we do
not feel that a Board of Arbitrators would be
justified in interfering, by reversing the
employer's decision, for the reason that to
do so would result in management by
arbitrators rather than management by the
employer,[sic] acting reasonably, could have
reached the decision such as is here
challenged by the' Union, Do Board of.
Arbitrators should interfere .... Or take a
simpler illustration= take the. case. of'a
merchant or a farmer or any employer
operating on a reasonably small scale. He
has, let us say, six employees, one of whom
occupies a ~osition superior to the others ....
somewhat in the nature of. a foreman.. The
employer entrusts duties to that 'foreman to
make decisions, including the hiring of
employees', allocating them to different
tasks, trusting to the skill.and ability of
that foreman. If the'foreman should promote
one of the. other five employees, what would
the merchant or farmer or other employee
think if the decision of the foreman, which
was made honestly and not capriciously or as
a result of bias or bad'faith or unjust
discrimination, was subject to review by some
- outside agency which had no knowledge of the
nature of the task to which the promoted
employee was to be assigned? .The business of
that merchant, farmer or other employer
would, in those ci=cumstances in the final
analysis be operated in that respect neither
by the employer or his foreman,'but by
arbitrators.
We can understand that an employee over whom
some other, employee has been chosen may feel
disappointed, but if the decision of the
employer has been honestly made, we do not
think that the disappointment of the employee
or anyone representing, him should lead him to
the point where he would be tempted to usurp
from his employer the function and authority
vested, in him alone, and put it in the hands
of some third party.
By relying on this principle the board has, I think,
unduly restricted itself and has failed to determine
the issue placed before it.
This is unfortunate, for the board appears to have.
carefully reviewed the evidence called by and on behalf
of the company. That evidence would seem to indicate
that the employer had taken all the requisite steps to
comply with the provisions of the collective agreement
in determining which of the competitors should fill the..
vacant position. However, in light, of the restriction
that the board' placed.upon its decision, one cannot be
certain that the board determined, as it must, whether
the employer complied with the provisions of the
collective agreement.
The board is truly and uniquely a creature of the
collective agreement. As a result of their
negotiations, the union.and employer have reached an
understanding as contained in the detailed provisions
of the collective agreement.
[Crit~ri~ for prom~tiOD]
If the selection and placement of employees in more
responsible positions is to be solely a management
function, then it is not difficult for the parties to a
collective agreement to set forth the understanding.
Whether management is to be unfettered in such a
decision, or whether no promotion can. be made without
the Consent and agreement of the union, are matters
that can form part of the collective agreement.
However, where, as h~re, the collective agreement
states:-
"9.04 When additional full-time employees are =squired
the Company will give preference to part-time employees
on the basis of seniority, skill and qualifications for
the Job concerned and availability for work."
then it is open to a member of the union to take
grievance proceedings if he or she is of the opinion
that the company has not complied with the requirements
of the collective agreement.
The board as a creature of the collective agreement
must then see to it that the provisions of the
collective agreement have been complied with~ it~ role
cannot be more or less than this. The honesty and lack
of m~la fides in making the-decision are factors to be
taken into account. So, too, is the question of
whether or not the employer has acted unreasonably.
Indeed, in determining the "reasonableness" of the
employer's decision, the board may go a. long way to
determine the issue submitted to it. However, once the
collective agreement makes provisions as to the method
of selection of employees for promotions, then. the.
board must see to it that those provisions have been
complied with and in so doing, it cannot restrict
itself to determining whether the employer acted
honestly and reasonably. If the board is not to make
such a decision, then the parties in the collective
agreement should insure, that management's right in this
regard is unfettered.
[Decision remitted}
26
As a result, I am of-the opinion that the matter should
be remitted to the board to determine whether or not
the employer in selecting Miss Holloway for the
position of Assistant Head Cashier, complied with
Article 9.04 of the collective agreement. The issue to
be determined by the board will be one of comparing the
respective skills and qualifications of Mrs. Dawson
[the grievor] and Miss Holloway for.the'job in
question,' but without limiting itself to determining if
the employer's selection was honest and reasonable ....
It is ~nfortunate that the ~eport of-the judgment of the
Divisional Court does not accurately reproduce the .language of
the boar''in the C~n~n In~,tr~e, ?.~te~ case, nor has the
error been co~ented.upon in subsequent cases where the award is
reproduced. The correct version of what the. board said is found
at p..237 of the C~n~4~ Inau~tr~es'~.i~te~ case:
In t~is and every like case where there is room for
honest difference of opinion, if it appears - as here
admitted to. be a fact - that the employer has acted
honestly, we do not feel that a Board of Arbitration
would be justified in interfering, by reversing the
employer's decision, for the reason that to do so would
result in management by arbitrators rather than
management by the employer. ~n ~h~s ~na every such ~4k~
· ca,e wh~re there ~- ~¥~ence ~ wh%ch ~ re~on~Bl~
~m~loy~r, acting reasonably, could have reached the
decision such as.is here challenged by the Union, no
Boar~ of Arbitrators should interfere.(Emphasis added.)
The emphasized words were omitted from both the reports of
the reasons for judgment of the Divisional Court, and of the
award in the A&P case, although in the award the omission is
explained by the inclusion of ellipsis points. The omission of
the emphasized words is significant, as they point to.the board,
in C.?.?,., having applied the requirements of the intermediate
27
position, although in other portions of the award the emphasis is
placed on the existance of good faith and hence the position
favoured by employers.
It would appear that the Court in A&P relied on an
inaccurate quotation from the Ca/%~d~an Industries L~m~ted case, a
reading of which can be seen to have distorted the meaning of the
board in the latter case. The exclusion of the emphasized words
lea~es the word #reasonble# in a somewhat confusing context, and I
fails to adequately convey the meaning intended by Mr. Justice
Roach. What is left is a version of the reasons of the board
which omits an expression of the intermediate position a~d which
emphasizes the language of the board that is more consistent with
the position favoured by management.
Unless the several parts of the C°urt's decision in the A&P
case are related one to the other, it might be erroneously
concluded that the Court had identified the responsibility of an
arbitrator as requiring a fresh and immediate determination of a
grievor's right to the claimed'job under the standards set out in
the collective agreement. At p.333 of the A&P case, the Court
stated:
The Board then framed the dispute ~n the following
words:
Thus the issue in the case reduces to one of
comparing the respective 'skill and
qualifications' of Mrs. Dawson and Miss
Holloway for the particular job in question.
At p..335, the Court repeated the issue as follows:
The issue.to be determined by the Board will be one of
comparing the respective skills and qualifications, of
Mrs. Dawson and Miss Holloway.for the job in question,
but without limiting itself to determining if the
Employer's selection was honest and reasonable.
Furthermore, at p.333, the Court repeated its agreement
with the statement of the issue:
At the outset, the Board had quite properly and '
correctly set out the issues to be determined. It then
appeared to limit its consideration of. the question.
The Court, at p.334,-faulted the board'of arbitration for
the.way in which it undertook to determine the issue:
The applicant submits th~at the boar4 put to itself the
wrong question, namely, ~hether the'employer in giving
the job to Miss Holloway had acted honestly,
reasonably, without discrimination and without bad
faith. Whereas the question ought to have been, did
the employer, on the basis of seniority, skill and
qualifications, award th~ full-time job to Miss
Hollowa~ rather than the grievor?
By'relying upon this principle the board has, I think
unduly restricted itself and has failed to determine
the issue placed before it.
This is unfortunate~ for the board appears to have
carefully reviewed the evidence called by and on behalf
of the company. That ,vddence wo~ seem to ~nddcate
that the ~ployer h~ taken all the requ~s~t~ ~t~ps to
com~ly with the prov~.~on, oF th~ ~ollect%ve ~greement.
in det.rmining whick o~ the competitor..hould ~ill the
vacant posit{on. ~owe~er, in 19ght of the restrictions-
that th- bQ~Nd placea ,%pon jr. dec'~s~on, on- ca,not be
c~rt~dn that the board determined as ~t must. whether
the employer compliea with the provisions o~ th~
coll,ct~e agreement. (Emphasis added.)
What the Court meant becomes clear upon reading the analysis
of Professor S~ Schiff in the case of Re ScarhoroRgh and C.U~p.~..
?.ucal 545 (1977), 14 L.A.C. (2d) 210 at p.214:
We grant that several passages in the Court's reasons
[in A&P] approving the board's statement of the issue
appear to argue against our reading. ~,~. ~n -e~t4ng
ont th~ ~ ~t w~ ~n th~ ~w~r~. th~ bo~ra w~s
referring to th~ 3~sue ~or the e~loyer', - not the
h~rd's - ~nit~J-dete~{n~t~D: see 11 L.A.C. (2d) at
p.292. Only later in the award did the board ~iscuss
the different ~estion of the scope of arbitral review:
see 11 L.A.C. (2d) at pp..295-6. As we read what the
Court said about the board's s~atement, the co~ents
can only be ~de consistent with the burden of the
' Court's reasons if we ass~e that the Court understood '
it in the way the bpard had in~ended.~ The contrary
~-~t~on. ~h~t th~ Co-rt m~nt ~t~ ~pr~l to define
the ~-s~ ~e{ore the ~o~ra. wo-ld re,er the
arbitrator', determln~tion Of th~ merits ~identic~l with
a~t~inat4on o~ the ~e~t~on tke Co-rt ~h~s~ed as
h~ic. wh~her tho e~loyer baa honoured t~ ae~n~ of
a particular s~nior~ty promotion cla~se. ~Rt. ~nce
~h~ Co~rt ha, d-ir~ct~ prhltrator, to cons4a~r' the
· ~ctor, o~ honesty, co~l~nes- aha re~son iD
a~tor~%ning th~ka~ic ~o-t~on. tb~ ~d-n~ity ~s not
pos-ihl~. And. ~ar~ ~rom th~ illo~c res~lt~ng ~rom
the contrary assumption, a ~a~r ~q ~ar qrom ~n~v4tab~
re~aing o~ the pr~clse langu~g~ the court usea suppor~
o~r conclusion. (Emphasis added.)
Professor Schiff adverted to the ambiguities in the judgment
of the Divisional Court in A&P, and noted how the ambiguity is
resolved upon reading'the award. He also referred to the "illogic
resulting from the contrary assumption." Although Professor
Schiff acknowleges that his conclusions as to the meaning of the
Court's reasons were "far from inevitable," he makes an excellent
case for following the interpretation that avoids an illogical
result.
3O
The first reference made by Professor Schiff (at p.292 of
· the A~ Award) is as follows:
The appropriate provision of the part-time collective
agreement is Art. 9.04, which reads: "When additional
full-time employees are .required the Company will give
preference to part-time employees on the basis of
seniority, skill and qualifications for the job
concerned and availability for work." In terms of
seniority the grievor's seniority date is April 6,
1967, while that of Miss'Holloway is October 16,' 1971.
Therefore, on the basis of the criterion of seniority,
the grievor would be entitled to succeed. HOwever, it
is apparent ~rom Art. 9.04 that seniority is merely one
of three criteria and is not entitled to be given
paramount consideration over the other two.' Thus the
issue in the case reduces to one of comparing the
respective "skill and qualifications" of Mrs. Dawson
and Miss Holloway for the particular job in question.
The second reference of Professor Schiff is found at pp.295,
6 of the A&P award and is as follows:
It is'now well established that a board' of arbitration
ought not to interfere with management's decision so long as
management has acted honestly and reasonably. That
principle does not, in our view, depend'on the inclusion in
'the 'collective agreement of special language to the effect
that the employer has "exclusive" discretion to decide or
'that a vacancy is to be filled "in the judgement of,
management". The rationale for the principle is set out
clearly in Re Canadian Industries Ltd. an8 Unite~ne'
Workers. Local 13031 (1948), 1 L.A.C. 234 (Roach) [at.
p.237]:
In this and every like case where there is room for
honest difference of opinion, if it appears'-- as here
admitted to be a 'fact =~ that the employer has acted
honestly, we do not feel that a Board.of'Arbitrators
would be justified in interfering, by reversing the
employer's decision, for the reason that to do so would
result in management by'arbitrators rather than
management by the employer ... acting reasonably, could
have reached the decision such as is here challenged by
the Union, no Board of Arbitrators-should interfere~..
Or take a simpler illustration: take the case-of a
merchant or a farmer or any employer operating on a
reasonably small scale. He has, let us say, six
employees, one of whom occupies a position superior to
the others -- somewhat in the nature of a foreman. The
employer ehtrusts duties to that foreman to make
decisions, including the hiring of employees,
allocating them to different tasks, trusting to the
skill and ability of that foreman. If the foreman
should promote one of the other five employees, what
would the merchant or farmer or other employee think if
the decision of the foreman, which was made honestly
and not capriciously or as a result of bias or bad
faith or unjust discrimination, was subject to.review
by some outside agency which had no knowledge of. the
nature of the task to which the promoted employee was
to be assigned? The business of that ~erchant, farmer
or other employer would, in those circumstances, in the
final analysis be operated in that respect neither by
the employer or his foreman~ but by arbitrators.
We can under'stand that an employee over whom some other
employee has been chosen may feel disappointed, but if
the decision of the employer has been honestly made, we
. do not think that the disappointment of the employee or
anyone representing him, should lead him to the point
where he would be tempted to usurp from his employer
the function and authority vested in him alone, and put
it in the hands of some third party.
The reasoning of Mr. Justice Roach applies with equal weight
to the right of management to make the more fundamental
determination of the specific qualifications required f~r a
particular jmb vacancy, and the cases have so held: see most
recently: R- Reynold~ Al-mdn,,~ Co. C~n~d~ T.td, ~n~ Int'l
Mo,,18.r. a~ A]I~a Workers Un{on. Loca! 98 (1974), 5 L.A.C.
(2d) 251 (Schiff) (at p. 254-5):
In the ordinary exercise of management functions
employers may determine in the first instance what
specific qualifications are necessary for a particular
job and what relative weight should be given to each of
the chosen qualifications. After the employer has made
the determination, arbitrators should honour the
managerial decisions except in one or both of two
circumstances: First, the employer i~ bad faith
manipulated the purported job qualifications in order
to subvert the just claims of employees for job
advancement under the terms of the collective
agreement. See Re UD~ted Rrewery Workers, r. OCa~ 173.
a~d CarI~ng Rrewer~es ?.td. (1968), 19 L.A.C. 110
(Christie); Re Text%i, Wo~k-r~ Uni6n ~nd ?.ady G~lt
Tow, 1, ?.t~. (1969), 20 L.A.C. 382 (Christie); Re
Canad{an T~%lmob~l- ~.td. and U.A.W.. ?.ocal ~97 (1973),
2 L.A.C. (2d) 13 (Brown).'Secondly, whether or not the
32
employer had acted in good faith, the chosen
qualifications bear. no reasonable relation to. the work
to be done. See Re U.~,W., T~]-?0?..and Ford Mo:Qr
CQ. of Cana&~ lta. (1970),' 21 L.A.C. 61, (Weatherill);
Re Oil, Chemical & Atomic Workers. Local 9-14. and
P~lymer Corp. T.ta. (1972), 24 L.A.C. 277 (o'Shea).
Much the same ~pe of comment as was made bY, Professor
Schiff in Scarborough was made by Mr. O'Shea in the C.R.C. case,
at p.41:
In answering that question ["did the employer comply with
the provisions of the collective agreement?], the board
should have determined whether the company compared the
respective skills and qualifications of the competing
. claimants. In order to make. that determination, the hoard
was required to assess the evi'dence which was considered by
the company, when and if it made such a comparison, as we1!
as the~evidence which was available to the company but which
· was not considered'. If, however, the company considered ali
the available eVidence, and had made an honest and
reasonable decision, there is nothing in the Court's
judgment in the A&P cass'which suggests that~he board of
arbitration should substitute its assessment of the
'respective skills and qualifications of the applicants for
· that of the company. Indeed, the contrary is true since the
Court sta6ed[:] "the honesty and lack of mala fi~es in
making the decision are factors to be taken into account.
So, too, is the question.of whether or not the employer has
acted unreasonably." Unfortunately, a great many
practitioners have taken the final sentence of the Court's
judgment and have distorted its meaning so that it bears
little resemblance to the reasohing which the Court a~plied.
Professor Schiff concluded (at p.214 of the Scar~oro~gh
case), that the A&P'case'required that the arbitrator test more
than the honesty displayed by the employer in the carrying out of
the process and the reasonableness of the decision:
Faced with the griev0r's charge ~hat the employer
violated the promotion/seniority c~ause in the
particular collective agreement, the arbitrator must
determine whether that charge is proved. In doing .this
the arbitrator must test'what the employer has done for
honesty, completeness and reason. But he must not, as'
the Court held the board in A&~ had done, avoid the
specific determination by stopping as'soon as the
subsidiary tests had been applied. To paraphrase the
Court's injunction in a well-worn phrase, the
arbitrator must not miss the forest for the trees. In
the end he is bound ko determine a grievance solely
upon his decision stated in the award that the employer
did or did not violate the particular agreement's
terms.
Whether the test applied is couched in terms of correctness
or completeness, as long as'the bona ~%d~- of management is a
factor for consideration by the arbitrator, along with the
reasonableness of the decision, the conclusione of boards of
arbitrations will be influenced by similar considerations. Under
the union position, the decision of management will, in ~heory,
be correct where it a~cords with that of the arbitrator. In
p~ac~ice, even while following the position favoured by unions,
as Professor Christie observed in Lady Gait, what is deemed
correct will be influenced by the fact that management is usually
inherently better qualified than the arbitrator to make the
assessment. It is implicit in his statement that such inherent
advantage will be overcome should the decision be corrupted by
evidence of bad faith in carrying out the process and/or a
decision that could not have been reasonably arrived at on. the
evidence.
In cases where the intermediate position governs, although
the choice of the employer need not coincide with the one which
the board would have arrived at if they had been the employer,the
34
fac% that a board will also have to consider the reasonableness
of the decision in comparing the relative qualifications and
abilities, or other specified factors of the competitors for the
job, will result in their considering alternative results, one of
which they may regard as a'better one than the one arrived at by
the employer.
Instead of analyzing what an arbitrator must do in
satisfying either test, there has been a tendency to state the
nature-of the test which--is thought to be the right one, and
hence the one to be followed. This ignores the essentially
common.features of what mu~t take place in a practical setting in
favour of more abstract and. theoretical representations of each
test, and tends to obscure the reality of the process.
There is another factor in competition cases, where the
e~ployer does not have the unfettered discretion to make the
decision, that. may have contributed to the development of the
position favored by unions. This is a result of the way in which
promotion cases are usually heard. It is recognized that the
union bears the burden of proof. This burden has usually been
stated in terms requiring the Union to establish.that the grievor
has the minimum qualifications and abilities for the job and that
she is'relatively equal in those respects to the other applicants
who are junior to her.See,B~own and Beatty, C~n~dian T,~hour
Arhitr~tion.3r.. ~dn. at p. 6-48. Brown and Beatty then proceed
35
to describe the evidentiary burden that passes to to employer
once the union has established a prlm~ f~c~e case:
... to substantiate that its selection was not
arbitrary, discriminatory, or unreasonable ....
An example of a cases defining the nature of the onus on the
union and the shifting of the evidential'burden, as above
described in Brown and ~eatty, is found in Re: Z,,~hrycki ~n~ The
Crown in Right of Ontario (M%n~str¥ 9f ?~8ustry ~ Tourism)
(1979), 22 L.A.C. (2d) (Adams).
If the intermediate position is the one mandated by the
Court inA&P, then the onus on the grievor should be consistent
with that position. As framed in Brown and Beatty, it is
consistent with the union'position referred to 'by the. board in
m.C. Ho-,i.ng. The issue is not whether the grievor is relatively
equal to the other candidates, but whether the employer has
carried out its responsibilities, in accordance with the
requirements of the collective agreement. The 9rievor will bear
the onus of showing that he posseses the minim%um qualifications
and abilities for the position:
· .. if it can be affirmatively established that the grievor
had the requisite ability, then an arbitrator will sustain
the employee's grievance unless the employer can offer some
reasonable explanation for not awarding her the job. (Brown
and Beatty, op. c~t., at p.6-45)
In many cases the way in which the selection was carried out is
particularly within the knowledge of the employer and this fact
may have influenced the finding that the employer must now come
forward to substantiate its selection in accordance with the
36
requirements of the collective agreement. See, Brown and Beatty,
o~. cit., at para. 3:2400, p.3-20.
Properly understood, the evidential burden requires the
employer to demonstrate that it carried out its responsibilities
under the collective agreement under the test established by the
Divisional Court in the A ~ P case, as explained above; not that
its decision'is ~orrect because it was the same as the one
arrived at by the board of arbitration employing the position
incorrectly ascribed to the Court..
Because the evidence of a grievor in meeting the obligation
of makin~ a Dr-iJ~% ~c~e case may include arguab}y relevant
matters which were no~ considered by her-employer, and should
have been, as Well as arguably irrelevent matters which.were said
to have been relied upon by her employer, and should not have
been',~there may be a gOod aeal 'of evidence befOre the board of
arbitration relating to the question of relative e~uality than
was initially considered by the employer in arriving a.t its
decision. Similairly, the evidence of an employer, in endeavoring
to meet the evidentiary burden, may be permitted to go beyond
that which it considered in arriving at-its earlier decision.
The 'eliciting of evidence at the hearing, which was not
considered by the employer in arriving at its decision,-does not
affect the role of a board in a promotion case. The reason .for
37
this is because the evidentiary burden that shifts to the
employer is one that is linked to the nature of the obligation
imposed by the Court in the A&P case'.
If the so called "extreme" position favoured by unions,
identified by J. Weiler in 8.~ ~Q~%ng, had actually been the
one established bT the Court in the A&P case, it would be
unnecessary for a board of arbitration to consider the factors
referred to by the Court. For if the board had,' : "... total
freedom to substitute their judgment for management's whenever
they disagreed# (b.C. Fous%ng, at p. 124), then it' would be
largely irrelevent that the employer. might have made its decision
without considering relevent facts, had acted on irrelevent
evidence, had established unreasonable criteria, acted in bad
faith, or arrived at a decision that could not have been arrived
at by a reasonble management on the facts before it. This follows
from the conclusion reached by the board in R.C, B~ng at p.
123, if its view of the test arrived at by'the Court in A&P is
correct: that it mandated the "extreme test" supported by the
union. Under that test:
Presumably, if the board disagreed with management's
choice of applicant, based on the board's assessment of
the evidence in light of the criteria of seniority,
skill, qualifications ~... the board should substitute
its decision for that of the employer.
Under that union position it does not matter whether the
employer satisfied the intermediate test which we ascribe to the
Court in.A&~. It now becomes the board that hears the evidence de
novo, and it is only management's conclusion Ghat is compared to
that of the'board. If they differ, the boa=dts conclusion would
be substituted for that of the employer. No amount of good faith,
.limiting the exercise to 'relevent evidence, nor the
reasonableness of the criteria or the decision could save the
emplo'yer's decision.
The restrictions that the board placed on their decision are
found at p. 295 of the award, in the A&P case= "It is now well
established that a-board of arbitration ought not to interfere
with management's decision s° long as management has acted
honestly and reasonably." From our reading the award in the A&P
case, we. conclude that the majority of the board viewed' the word
"reasonable" as.being referrable to whether the employer was
reasonable in establishing criteria for assessing qualification~
and ability: Did it,first, in bad faith, manipulate'"the
purported job qualifications in order to subvert, the just Claims
of employees for job advancement under the terms of the
collective agreement ... "? And, second, "whether or not the
employer acted in good faith, [do] the chosen qualifications bear
· .. [any] reasonable relation to the work to be done" ?'The last
two quotations are from R~ Reynolds Al,minum Co. C~n~d~
(1974), § L.A.C. (2d) 251, at p. p~ 254-5, which the majority of
the board in A&P cited with approval, and followed, at pp. 295-6,
after which they stated what they.took to be the princi~a~ issue
39
.in the case:
The principal question in this c~se is whether there is
anything in the language of the agreement which
requires the board to-limit the right of management to
set out the requirements for the job. The operative
words are "skill and qualifications" and it is to the
proper interpretation of those terms that we now turn.
The majority of the board in the A&P case reviewed the
actions of the employer for the purpose of assessing whether the
criteria established by it were reasonable ~nd not to establish
whether the decision, based on proper and relevant evidence in
the light of proper and relevant criteria, was one which an
employer could have reasonably arrived at, and concluded:
We therefore conclude that the company did not have
regard to improper and irrelevant considerations when
it took the action complained of.
The board then, at p.299, stated the "remaining question":
"... whether or not, in applying the criteria'which it'did apply,
the company assessed the candidates for the vacancy in a manner
which was honest and reasonable and not affected by
considerations of bias or discrimination." The board then, at pp.
299-300, proceded to review the "process of assessment" carried
out by the st~re manager on behalf of the employer, and then
concluded:
Given the limited jurisdiction that the board has to
review the employer's decision in a case of this kind
and given the manner by which the employer arrived at
its decision the board concludes that the employer
acted honestly, reasonably and without discrimination
and without bad faith. Moreover, we conclude that the
criteria it applied ~n assessing [the grievsr's]
competence were proper criteria within the scope of
-.art. 9.04. Accordingly the grievance is dismissed.
Because the language used by the board in the A&P case was
considered by the Divisional Court, at p.. 335, to be unclear as
to whether it had found the employer to have complied with the
provions of the collective agreement, the Court concluded that
while :
the board appears to have carefully reviewed the
evidence called by and on behalf of the company [which]
... evidence would seem to indicate that the employer
h~ t~ken ~]--'the requ~s~t~ st~p, to co~ply with ~he
proy~sjons o~ th~ coll-ctive ~gre~ment ~ ~et~rm~D~ng
whack o~ ~ha competitor- s~oul~ fill the v~c~nt
po-itfon ... in light of the restriction that the board
placed upon its decision, one'cannot be certain that
the boarddetermined, 'as it must,-whether the employer
complied wth the provisions of the collective
agreement.(Emphasis supplied.)
It is ciear from ~ading the judgment of the Divisional
Court, at pp. 334-35, that the undue restriction referred to by
it, which resulted in the conclusion that the board "[had] failed
to determine the issue placed before it" was its apparent
reliance on the principle said to have been enunciated by the
board chaired by Mr. Justice Roach acting as an arbitrator in Re
Canadian Industries T.~m~ted. That case was viewed by J. Weiler in
m.C. Hoarding,at p. 124, to represent the so called extreme'
position from the employer's perspective, and limited a board of
arbitration to a review in the'nature of: "a subjective inquiry~
whether this assessment was made honestly, in. good faith and did
not discriminate between employees." The ~ivisional Court, at p.
41
334, specifically identified the offending principle as follows,
· quoting from the Canadian ?ndustr~e- £.imdtea. case:.
We can understand that an employee over whom some other
employee has been chosen may feel disappointed, but if
the decision of the employer has been honestly made, we
do not think that the disappointment of the employee or
anyone representing him should lead him to the point
where he would be tempted to .usurp from his employer
the function and authority vested in him alone, and put
it in the hands of some third party.
It may be that the board in Canad{an ?ndustr.~es !.i~ted did
not intend to limit the review of an employer's decision to the
question of whether it had "been honestly made." The omission of
the significant words: "In this and every like case where there
is evidence on which a reasonable employer" before the words:
"acting reasonably, could have reached the decision such as is
here chailenged by the Union, no Board of Arbitrators should
interfere," from the quotation taken from the C~nad~n Industries
T. im~t,d case, and included in the award of the board and the
judgment of the Divisional Court in A&P, caused the Cou~t to
ignore the other possible meaning of the C.?.L~. case: that the
board had accepted the intermediate position. From the language
employed by the Divisional Court, however, it is apparent that it
viewed the offending principle that the board in A&P had followed
as being consistent with the board having accepted the extreme
management position.
What the Divisional Court also found in A&P was that the
award had not made it clear that the board had reviewed the
42
conduct of the employer to see if art. 9.04 had "been complied
with." Tha~ is, the Court was not satisfied that the board had
regiewed the way in which the employer had arrived at its
conclusion with respect to the candidates' "skill and
qualifications." As the Court noted, at p. 334:"That ~v~dence
wo,,l~ s-em to ind~c~t- that the en%p~oyer ha8 t~ken ~11 the
r-~,ia~t- steps'to com~ly with the prov{s%ons of the collective
agreement in dotenmining whlg~ of the co.mPetitors shoal& fill the
vacant position."(emphasis supplied) That is, the board had not
made it clear that %hey had reviewed the the employer's
assessment of the evidence t9 see if-it had acted only on
relevent evidence, and that its conclusion was one that could
have been reasonably arrived at on a review of that evidence, the
employer already.having demonstrated that the process was
honestly carried out without any manifestation of bad faith.
The Court, in A&P, spoke of the obligation .of the board to
review the the steps taken by the employer in carrying out its
obligations and not of its'conducting .an appeal in the nature of
a hearing de novo.
When the Divisional Court referred to a responsibility to
review the element of reasonableness (at p. 335) it was in'the
context the reasonableness of the decision. As the Court. noted
(~h~8.), reasonableness is not an abstract concept. The only way
that a board can determine that the employer has complied with
43
the provisions of the agreement is by reviewing the evidence
r~lied upon in arriving at the decision in the light of the
established criteria. If the decision is one that an employer
might have reasonably arrived at, that reasonablness "may go a
long way to determine the issue submitted to it."
If the board'S decision was based on the position favoured
by unions, reasonableness would have nothing to do with deciding
-the issue. Paraphrasing Professor Schiff in the ~rhorou~h case,
at p.214:.W~y waste time reviewing what management did if the
board is required to conduct a fresh assessment'as to who the
successful candidate should be? Why not have the board just hear
the admissable facts relevant to the issue and decide if
management's decision is the correct one? That is: Is i~ the same
as the board's? Even those arbitrators who follow the so called
extreme union view follow the intermediate process identified
above.
We therefore conclude that the-intermediate position
identified by J. Weiler in the'R.C. ~oumd~ case to be identical
to what was mandated by the Divisional Court in the A&P case.
However, the two positions will be,-in practice, remarkably the
same. This is the conclusion of Brown and Beatty, op. cit. at po
6-39:
Notwithstanding the'distinction which some arbitrators
have drawn between those agreements which expressly
describe the assessment of an employee's abilities as
being on~ which is in "management's opinion," and those'
which do not, the practical effect of not including
such a proviso in the agreement may be more apparent
than real. Even if the arbitrator asserts jurisdiction
to review the employer's decision on the merits as to
the relative abilities of several employees, there
remains a strong presumption of arbitral deference to
the employer's judgment ....
In the result, even. in those· instances when arbitrators
have claimed jurisdiction to review an employer's
decision on the merits, because of the overriding
deference they show for the employer's judment, many
employees who have challenged a managerial decision as
to their skills and abilities have been unable to
overcome this arbitral caution.
We have, perhaps, taken too long to arrive at a conclusion,
which Professor Chr'istie so succinctly stated in the r.ad~ Galt
case. Nevertheless, because of ~he. way that counsel presented
their views as to the role of the Board in competition cases,
which'bears on the interpretation of a~t. 4.03, we have responded
to the concerns raised by them..
As will be seen from the above analysis of the direction
given by the Divisional Court in the A & P case, whatever
position may be ~aken, there appears to be unanimity among
arbitrators that an employer faced·with a competition clause,
must, in making its decision, address all relevant·evidence'that
is reasonably available to it. It must not·be influenced by any
irrelevant evidence that it considered. Its criteria established
for the purposes of the competition must be reasonable. ~It must
act in good fai%h, and'its decision must be one that is
reasonable in the sense that it could reasonably have been
reached by,a reasonable empl'oyer based on a consideration of the
relevant facts.
How can the development of pre-screening mechanisms be
employed while adhering to the requirements of Article 4.3?
Where certain qualifications and abilities are essential to the
performance of the required duties, their absence can be used as
an early'pre-screening mechanism. We do not believe that counsel
for the Union would take issue with this statement. 'What of the
situation where, as here, there is no claim by the Employer that
the Grlevor lacks the qualifications and ability t~ perform the
required duties of the posted position, hut the allegation is
that a pre-screening t~st has established that, whi~e possesing
them, he is clearly inferior to other candidates so that it would
not. be unfair to deprive him Of an interview? Can considerations
of cost and efficiency reiieve the ~mploye= of its obligation of
completeness in carrying out the requirements of art. 4.3?
Counsel for the Employer suggests that there are. different
standards of completeness where a pre-screening test is used.
In the K~yntje- case: "the criteria for the jo~ were listed
under two headings: 'Must Haves' which were absolutely required
of the successful candidates; and 'Should.Haves' which were
desirable but not essential." (at p.2)
The initial screening of applicants in the Kuyntj~ case was
performe~ by the personnel officer of the employer using a
?
46
prepared form which accurately.reflected the criteria established
in the'job posting=
"he placed ticks (they have itl, crosses (they don't have
it), or question marks (not sure) in each of the 'm~st have'
and 'should have' categories for each applicant. These
ticks, crosses.and question mark~ were based solely ,.. on
the applicant's written application form."
This list was given to the interview panel to decide which of the
applicants should be interviewed for the job. The panel decided
to call six people for interviews.for'two available'positions.
Two .employees were judged superior based on the initial screening
process. Another eight were considered roughly comparable'at
this stage but the interview team decided to interview only four
of these.and based their cut-off decision on 'the seniority .of the
applicants. Following the interviews the. two positions were
awarded to two employees both of whom had substantially greater
seniority than the grievor. The panel in the Kuyntjes case aid
not review the personnel files of any candidates prior to the
interview decision.and.supervisors were not contacted for
additional information on the applicants, and it was found that
prior knowledge of. the candidates was incomplete.
Counsel .fgr the Union relied on the ~ynt]es decision as
reinforcing "the proposition that the process the Employer uses
to determine who should be interviewed should be conducted in the
same manner as the process that the Employer uses 'to determine
who should get.the job" and specifically noted the reference to
~nn in the ~tlyntjes case. The language relied upon from the'
Kuyntje~ case is found at p.§:
If the eventual decision about who gets a )ob is to be
based on relative qualifications and abilities, it
follows that all steps leading up to that decision must
also satisfy the requirement that they lead to valid
and relevant information about qualifications and
· abilities being brought to the attentiOn of the
selection board.
We do not read the Ku~ntj~ case as.does counsel for the
Union. Treating the pre-screening process as a step leading up
to the final decision, it need not be conducted in the same
manner as the process that the Employer uses to determine who
should get the job. If this were the case, as was observed by
counsel for the Employer, it would not be a pre-screening. What
is necessary, however, is that the pre-screening results in
'valid and relevant information about qualifications and
abilities being brought to the attention of the selection board"
that is appropriate at the pre-screening s~age. This does not
mean that the pre-interview screening need not be comprehensive
or fair, It must be recalled that it is a pre-screening: that
is, a means of avoiding the necessity of a fuller review of an
applicant's qualifications and ability. This is warranted where
the pre-screening review clearly demonstrates that the
qualifications and ability of the Grievor are not relatively
equal to those of the applicants selected for interviews and that
engaging in a further examination of his or her qualifications
and ability through such means as an interview, review of the
personnel file and discussiohs with supervisors is unwarranted.
In.the K~ntjes case, the Board found t~at the employer was
(at p.4): "particularly concerned that the candidates have a good
working know~edge of tendering procedures." The Board found that
~his requirement (ibid.): "was ... clearly included in the duties
and responsibilities required," and further found that the
grievor's experience of tendering was very limited and confined
to out-dated tendering procedures and policies. The board (at
p.6) found that the employer's decision, at the pre-screening
stage, involved its "knowledge of the type of work that [the
candidates] would have been involved with in the position they
had held," and stated that (ibid.): "in o~r view this is a
perfectly reasonable way of going about a pre-screening process.
The fact that the selection panel did not seek out personnel file
data and/or supervisor assessments of all candidates prior to
deciding to offer interviews to some does not, in our judgement
invalidate the pre-screening process." It is significant that in
KuyDtjes case the pre-screening disclosed that the grievor did
not adequately possess a significant qualification necessary for
futher consideration. There was nothing in the case to suggest
that a further investigation could have altered this conclusion.
Counsel for the Union also relied upon Binkley and Reid (659
and 660/88) (Watters). In that case the grievors had been denied
an interview for the posted position. Because the employer
acknowledged that one of the grievors should have been accorded
an interview, the award dealt with only one of the complaints.
49
· As in this case, the Board determined that the onus rested with
the employer to establish that it acted properly in denying the
interviewto the grievor. The knowledge of why the determination
was made was particularly within the knowledge of the employer
and' it was therefore appropriate that it bear the onus on such an
issue. The Board noted that it was relying on the comments found
in' Roreck{ and in ~l~cs 42/84 (Verity), both of which cases
dealt with a similar issue. As in the K~ntjes case, the job
posting in the ~nk]~y case .indicated the .qualifications and
abilities tha~ the candidates must hav~, and these were divided
· into 'must have" and "should have" areas. The employer
concluded, upon a review of the grievor's application, that he
should not be interviewed as he did not, in the employer's view,
have al! of the "must haves". It was the assessment of the
Personnel Officer that only the incumbent met the advertised
criteria, and he was the only candidate to be interviewed. The
grievor was'found by the employer not t° have the first "must
have," being "demonstrated experience in the inspection of signs
and buildings applications and pe=mits areas." The employer was
found (at p. !5) to have committed a fatal error in discounting
the experience claimed by the grievor in his application without
verifying it through the interview process.
Counsel for the Employer endeavoured ·to'distinguish the
Roreckd, Kuyntj,, and Rdnk]e~ cases on the basis that the pre-
screening test, in those cases: "was conducted based only upon
50
the application form 0f the candidates [and] no written tests
were conducted. Management then assessed the qualifications and
ability of these persons against the standards required for the
appropriate position." Counsel for the Employer contrasted those
cases with the case before us where the Employer was said to have
used: "the application forms to determine eligibility to write
the test." This test was said to have been designed: "to
specifically assess the candidates on a basis which would be
equitable for all of'them. Assuming that the written test was
appropriate ... the process of'requiring candidates· to complete a
written test is clearly a better, more complete and fairer method
of assessing individual qualifications and abilities. It places
all of the candidates on a level playing.field." Counsel for the
Employer then went on to state:."The fact %hat boards of
arbitration approved the process for pre-screening used in these
cases does not preclude the Ministry of Correctional Services
from designing ~heir own pre-screen mechanism."
We agree that there .are many ways of conducting an adequate
pre-screening mechanism. But the pre-screening mehanism must
clearly demonstrate that no useful purpose would be served by
moving a 'candidate to the next step in the selection process
without any or all of an interview, resorting to an examination
of the personnel file, obtaining information from a candidate's
supervisor.
51
Does the test ~mployed in this case as a pre-screening
mechanism furnish the Employer with clear evidence that there
would be no useful purpose served in granting the Grievor an
interview? That is, it would not be unfair to the Gr~evor to fail
to'take the additional steps referred to because the results of
the pre-screening test demonstrate that he does not~ have certain
essential qualifications and abilities that are nepessary to
perform the dutihs and responsibilities of the position. Or, if
he possesses them, that'it is clear that they are not relatively
equal to those of the successful candidate and that .it is not
reasonable to expect, even if the interview and other
investigations, such an examination of the grievor's personnel
file and an interview with the grievorts supervisors were
conducted, that this would.'alter the conclusion arrived at upon
evaluating the test scores.
In order to assess whether the test was an acceptabeie.
mechanis~ for pre-screening, it will have to be examined further.
In reviewing the pre-screening test, counsel for the Union
submitted that the qualifications and abilities required for.the
satisfactory performance of the Classification Officer's position
contained both technical and practical aspects. She further
submitted that the practical qualifications were not capable of
being measured by written questions and answers. It was
submitted that only three of the eight qualifications cguld be
effectively measured by a written test: (1) sound knowledge'of
52
inmate classification, (2) Temporary Absence Programme, (3)
institutional operation and administration. Counsel for the'
Union argued that it was unfair to test knowledge which could not
be found in the source materials and, therefore, questions
related tO the Temporary Absence Programme were improper. As to
the other five qualifications, counsel for the-Union submitted
that they would be best tested by an interview and a review of an
applicant's past experienqe, review of' personal files,
performance appraisals, and discussions with supervisors. It was
argued that less than fifty percent of the qualifications listed
were tested by the exam.
Counsel for the Union also argued that Exhibit 3, the
position specification form, annexed as Appendix "B,"
demonstrated that fifty percent of the job entailed providing
advice and counselling to inmates with the other fifty percent of
job duties involving the provision of classification and
discharge planning for inmates. While technical knowledge was
required for both of these functions, the latter five
requirements as listed in the job posting (Exhibit 2) would be
essential knowledge required of a candidate to perform
effectively on the job.
In acknowledging that'counsel for the Dnion had endeavoured
to question the relationship between the quest$ons which were
contained in the written test and the qualifications which were
required in the Opportunity Bulletin, counsel for the Employer
agreed that the first three qualifications could be effectively
measured by a written test, but differed with counsel for the
Union in all other respects. ..
In the Union submission the test questions related mainly to
the technical aspects of the inmate classification system with
questions 1 to 7, both inclusive, "definitely" dealing with the
technical aspects of inmate classification. The Union's
conclusion was that "not all three qualifications listed above
were adequately evaluated by the test.'"
Counsel for the Employer submitted that qualification number
4: "Significant'experience in.a ~orrectional setting" was tested
by the initial pre-screen'mechanism where Ms, Benjamin-Kent and
Mr. Morris went through all of the applications and resumes to
determine whether or not-the candidates possessed the selection
criteria they were looking for. Ms. Benjamin-Kent testified that
they were looking for "institutional experience, knowledge of
classification policies and procedures and knowledge of the
Ministry."
Counsel for the Employer submitted that qualification number
five: "Ability to communicate orally and in writing" was tested'
by the writte~ exercise forming part'of the test. 'He'noted that
short written essays are uniformly employed to test a person's
54
writing ability. He stated that: "The obvious justification for
the fact that the essay was worth twenty-five percent of the
total test is that it examines more than just the ability to
write. The question asked: 'Should the process of classification
be totally computerized so that the computer classifies the
offender to the appropriate institution, program, etc.,' clearly
tests for a sound knowledge of inmate classification
(Qualification 1), institutional operations and administration
(Qualification 3), and significant experience in a correctional
setting (Qualification 4)." He acknowledged: "Clearly, the
ability to communicate orally was not tested by the written
exercise."
C~unsel for the Employer submitted that qualification number'
6: "Basic knowledge of intervention ~ractices, i.e. interviewing
techniques" and qualification number 7: "ability to establish and
maintai~ good interpersonal relationships" were tested by
question number 9: "list 8 interview techniques which will
indicate to the client'that you are listening to what he is
saying."
Counsel for the Employer stated with respect to
qualification number 8: "Satisfactory work performance and
attendance," that it was not examined by the written test. He
relied on arbitral authority that there was no obligation to test
for all of the qualifications and abilities during the pre-
screening phase, some of which would very likely be tested for in
an oral interview or by checking with superiors or performance
appraisals. Be maintained that 'there was no mandatory
requirement to do' this during a pre-screening test.
Counsel for the Employer, while he agreed with the'
submissions made by counsel for the .Union that the test questions
related mainly to technical aspects of the inmate classification
system, maintained that all of the questions, particularly the
written part of'the test, demonstrated whether ~r not a candidate
had the technical-ability to perform the job. This was said to
be the .purpose of.a written test which was not the bes'tmeans of
testing for ability to establish and maintain good interpersonal
relationships and satisfactory work performance, attendance and
oral'abilities (Qualifications numbers 7, 8 and part of 5) but,'
nevertheless, provide a basis upon which to fairly compare the
candidates for the majority of the required qualifications.
Counsel for the Employer, in response to the assertion by
counsel for the ~nion.~hat the Ministry should have reviewed
personnel files or spoken to supervisors, stated that such an
assertion was "clearly incorrect at law." Counsel' for the
Employer referred to the Ku~yntje~ case where the ~nion argued
that the. selection process was "deficient" (p;5, para. 1). In
the Kuyntj~ case the only deficiency'in the process which was
discussed was the failure of the Ministry 'of Transportation and
56
Con~unication to seek out personnel file data and/or supervisor
assessments prior to deciding to offer interviews. It was noted
that in the final paragraph of the decision the Board held that
this failure does not invalidate the pre-screening process.
As noted above, a'pre-screening process must be conducted in
a manner that would not relieve the employer, from carrying out a
complete assessment as is'mandated by Article 4.3. Article 4.3
does not say that if it is too costly or inefficient to seek out
evidence which is reasonably relevant and available, then the
Employer .is not required to do so. The very fact of collective
bargaining imposes inevitable costs and inefficiencies upon an
employer. Just because there are many applications does not mean
that an employer is then excused from seeking out the relevant
evidence that is reasonably available.to it. Nor does it mean
that, faced with a large number of applications, an employer
cannot, while adhering to its obligations under Article 4.3,
develop pre-screening mechanisms. If properly formulated, these
mechanisms will demonstrate that it would not be unfair to a
candidate to preclude her or him from being considered at a
further step in the process. This will clearly be the case where
the pre-screening demonstrates either that a grievor does not
have a necessary qualification or ability or that while he
possesses it, it has been insufficiently displayed to warrant his
further consideration. In those circumstances, the evidence
being clear, the failure to seek out personnel file data, and/or
57
supervisor assessments prior to deciding to offer interviews does
not invalidate the pre-screening process.
Counsel for the Employer referred to the submission made by
counsel· for the Union: "Ms. May Benjamin-Kent informed the Board
the answers to qUestions 5, ?, 8, 10 and 11 are found in the
source documents." Counsel for the Employer stated:
we assume that this submission is incorrect and that the
word 'not' should be inserted before the word 'found'. In
any case, the Ministry fails to find anything improper about
such qUestions. The posting date f~r the opportunity
bulletin was December 5, 1988 (Exhibit 2), and the
· examination date was January 10, 1989 (Exhibit 7). The
thirty-six days between these two aates provided ample
opportunity for candidates to conduct' research regarding
this position, if they so desired.
With respect to counsel for the Union's assertion that
"surely this cannot be seen as a fair way to test a candidate's
knowledge as they may not have the opportunity t6 make such
inqUiries, they may not find an individual who 'is willing to
speak to them and finally,-if they did question such individual,
the answers recalled may not be reliable," counsel for the
Employer stated that: "There is no evidence that Mr. Weekes did
not have an opportunity to make such 'inquiry, that he could not
find an individual willin9 to talk to him or that he received any
unreliable information. It is the mark of a diligent candidate
that.they would seek out this information and there is no
evidence that Mr. Weekes did so."
We'would not regard'the objection'of Counsel for the Union
58
as determinative of this issue. In the circumstances, we agree
with the submission of counsel for the Employer that it was up to
Mr, Weekes to testify that he made reasonable efforts to obtain.
information necessary to answer the questions and was
unsuccessful through no fault of his own.
Counsel for the Union made extensive reference to the
Grievor's qualifications with a view to establishing that he met
the qualifications as set out in the job:posting. She referred
to Exhibit 16 being his ~pplication 'and resum~ and the
information contained in Exhibits 17 to 21. In particular, she
referred to the fact that Exhibit 16 identified for the Employer
the Grievor's educational, vocational and volunteer skills which
were said to qualify him for the Classification Officer position.
Reference was also made to the fact that Exhibit 16
demonstrated that the Grievor had "the requisite sound knowledge
of institutional operations and administration' together with
significant experience in a correctional setting and that his
experience as a freelance .journalist, an assistant cost
accountant and considerable post-secondary education indicated
that he had the ability to communicate effectiv.ely both orally
and in writing."
Counsel for the Union also referred to the information
59
concerning the Grievor's volunteer experience as a Member of the
Speakers Bureau, a Hostage Negotiator, and his community work
which:
would seem to suggest again that he has the ability to
communicate effectively both orally and in writing with a
variety of individuals such as inmates, staff professionals,
.community agencies, as well as the ability to establish and
maintain good interpersonal relationships, satisfactory work
performance and attendance. Furthermgre, his experience as
a Volunteer. Probation Officer and as a Correctional Officer
for that matter, would lead one to believe that he has
knowledge of' the inmate classification system and the
Temporary Absence Programme in that .he would have basic
knowledge of intervention practices. Accordingly, it is
hard to imagine why the Grievor should 'not have been
interviewed for this position.
· Counsel for the Union also referred to the Grievor's
performance appraisal, Exhibit 17, which showed that he had been
rated as "satisfactory" to "conSistently exceptional" in the
following areas:
· counselling and controlling inmates
. security
. working relationships, and
. communications and report writing.
Counsel for the Union referred to the summary/
recommendations section where the Grievor's supervisor stated
that he "gets along well with his peers/supervisors" and is a
"soft-spoken person, effective in promoting good public.
~ela'tions." It was submitted that the Grievor's performance
appraisal from April.of 1988 to April of 1989 (Exhibit 21~ is
60
consistent with Exhibit 17 and shows that the Grievor's
performance as rated by the supervisor was exceptional in six out
of the eight categories and commendable in the remaining two
categories.
Exhibit 18 showed that the Grievor worked as a Volunteer
Probation Parole Officer and gave over and above ~hat which is
required to his position at the jail.. Exhibit 19 showed that his
supervisor at Probation and Parole Services held his contribution
to the volunteer program to be "invaluable," and that "in this
position he has developed interviewing skills and his written
case notes and reports are completed in a professional and
punctual manner," which assessment was said to be reinforced by
the Grievor's evaluation date January 18, 1989, marked as Exhibit
20.
It was the submission of counsel for the Un,on that all of
the sources of information referred to were "invaluable wi[h
respect to ascertaining whether the Grievor would be able to
function well in the Classification Officer's job and tha2
Exhibits 17 through 21 demonstrated a strong prima fa¢ie case
that the Grievor was well-qualified to perform the Classification
Officer's position .... "
It was also submitted on behalf of the Grievor that if MS.
Benjamin-Kent and.Mr'. Morris had interviewed the persons who
61
supervised the Griever, both as a Correctional Officer and as a
Volunteer P~obation Parole Officer: "they would have had a
Completely different picture of the Griever's ability compared to
his' performance on the screening test."
It was the further position of counsel for the Union t~at
the evidence referred to demOnstrated that the Grievor: "was
abundantly qualified for.the classification Officer position and
should have been interviewed.- It was also submitted that: "..,
the.fact that the.screening test indicated that he was not as
qualified, was reliable evidence to show that the screening test
could not possibly measure the candidates' relative
qual-ifications and ability required for this position."
In respoqse to the Union's.submissions concerning the
Grievor's qualifications, counsel for the Employer submitted that
the evidence of the Union was irrelevant in this case'because the
clause in question was a competition one:
and as such only the best cand-idate will be the successful
'applicant, The Union chose not to put any evidence of other
candidates' qualifications' before this Board. Therefore,
there is nothing to compare the Griever's qualification~ to
in order to determine whether or not he is in fact more
qualified than the other candidates, In any case, it is our
. position that this information is of no assistance to this
Board and that the purpose of pre-screening does not
necessitate its consideration.
As we have noted, above, our view of the purpose of Pre-
screening differs from that submitted by c~unsel for the parties.
62
If there is to be permissable pre-screening it must be based on
some factor or factors that would justify the Employer in
removing a screened-out candidate from further consideration. The
pre-screening devices utilized by an employer need not measure
all of the qualifications and abilities which are reasonably
~considered to be required to perform the required duties of the
posted position. However, in order to preclude a candidate from
further'considerati6n, the form of pre-screening chosen by the
employer must identify some qualification(s) or ability(les)
which are being tested or reviewed that are considered necessary
to perform the required duties, so that it is justified to screen
out a candidate who either lacks such qualifications and/or
abilities or who is deficient in those areas tO such a degree as
to warrant his or her being screened-out. That is: it is
reasonable to'conclude that seeking further evidence by interview
or otherwise would not only be costly and inneficient, but the
additional information would not likely alter the conclusions
derived from the test.
The Employer is not required, during pre-screening, any more
than it is required to do so if there is no pre-screening, to
seek out evidence which is not reasonably available to it.
whether the decision is one taken at the pre-screening stage, or
thereafter, the Employer cannot rely. on evidence which is
irrelevant to its decision, it must act in good faith and the
decision to screen-out a candidate.must be one that could
reasonably be made relying on the relevant evidence concernin~
the factors of qualifications and ability to perform the required
duties selected by the Employer.
In the case before us the test that was used as a pre-
screening device was intended' by the Employer to represent "a
thorough screening of the candidates against a pre-established
set of criteria which were reflective of the job requirements."
It was the'position of the ~mployer that= "Of the eight
qualifications outlined in the Opportunity Bulletin (Exhibit 2 at
the arbitration) only the ability, to orally communicate
effectively with a variety of individuals such as inmates, staff,
professional~ and community agencies (point number 5) was not
assessed through at least one of the questions of the written
test. All of the other qUalifications were'tested."
~ounsel for the Employer then went on to state:
By its very nature, a pre-screening interview does.not
have to comprehensively test for all of the criteria
which are. required to perform a certain position. If
this were the case, then the pre-screening mechanism
would simply be superfluous as each candidate would
have to be fully assessed ~nd this would eliminate any
justification for a pre-screening mechanism.
If, by the above statement, counsel for the Employer means that a
pre-test need not test for every qualification and ability
relating to the performance of the required duties, then we agree.
with him and the statemen~ is consistent with what we have said
above. If he means that havin~'chosen the criteria to pre-test,
64
the Employer can rely exclusively on the test and ignore other
reasonably availabl~ relevant evidence bearing upon the criteria
chosen for pre-testing then we must disagree with him. The
obligation of the Employer to do as full an examination of the
reasonably available evidence relating to the criteria chosen for
pre-testing is no different than that where there is no pre-
screening and the Employer performs a test of the full range of
criteria relating to the performance of the duties and
responsibilities of the posted position.
We have no difficulty with the assertion of counsel for the
Employer that a pre-test need not cover every skill and ability.
However, in pre-testing for the Presence of the other skills and
abilities, we must be certain that~the test was capable of
demonstrating, and did demonstrate, that it would not be unfair
to a screened-out applicant to remove him or her from further
consideration without examining readily available evidence that
may be ~elevant.
Tests are an established mechanism in the public service
and elsewhere for evaluating candidates in a job competition.
Most of them, and the one we are considering is no exception, are
not capable of being viewed as being based on standards or
accepted models developed in accordance with social science
research methodology. Those whose job it is to prepare,
administer and mark tests are familiar with, or becomes familiar
with, the duties and responsibilities of the posted position; and
are aware of, o~ is become aware of, the qualifications and
abilities which 'are required. The. above observation .is not
intended as a criticism of the work of those who prepare and
administer the tests in job competitions in'the public service
but it is made for the purpose of noting some of the limitations
of the form of'testing usually employed so that nei%her too much
or too little will be made of the tests or their results. We
would also emphasize that the tests are not to be judged against
a paradigm of perfection in form, content or administration.
In the Cook case, referred to above, which was relied upon
by counsel for the Union, 'the Board referred to Caston and
Therri~n, 14~/80:
There might be occasions-where it is necessary to place
greater reliance'on the creation of a test which
artificially examines the various criteria'which would
be important in the performance of the job under
review, however, in a case such as this; much more
significance ought to be given to evidence of work.
performance, on the job, where such evidence is of the
greatest relevance. An artificial test, intended to
examine the various attributes necessary for
satisfactory performance on the job cannot seriously
affect visible, tangible manifestations of the
characteristics sought to be teste~. This'is
especially so where the. test is created by amateurs and
is unvalidated. This is not to say that persons
familiar with the job, and with the characteristics
which.are required in order to carry out the job,
cannot prepare a test based on their practical
experience. It does mean, however, that the use of such
tests must be closely scrutinized and their results
ought not to prevail where actual events disclose that
an applicant has functioned well in an area'where the
test indicates that he is not l'ikely to do so.
66
The point that was there made' was that if there is evidence
of skills and quaiifications based on actual work performance or
attained in some other manner, this reality may cause the
assessment of inferior results obtained by a candidate in the
performance of a 'test to be reviewed and, perhaps, tempered where
such information is available. In the case before us, the
applicant, while he had never actually performed the posted
position, is alleged to have had certain experience which would
manifest his having certain relevant qualifications and abilities
to perf0rm the duties and responsibilities of the posted
position. The additional evidence bearing upon the criteria
allegedly being tested for, it was alleged, could have been
obtained from the Grievor's employment file and from interviews
with his supervisors, both'within and without the Ministry.
BecauSe the Employer did not see fit .to go beyond the resum~
submitted and the test, it was said to have prevented itself from
properly carrying out its ~esponsibilities under article 4.3 of
the collective agreement.
If an assumption were made that the Employer had fairly
examined the Grievor's employment file and.had communicated with
his supervisors and had not found any evidence which would alter
its view of his qualifications and abilities as manifested from
his performance on the test, that would not end the matter. This
is because counsel for the Union submitted that even if the test
measure4 the qualifications which the Employer said it did test,
67
and that it was an adequate method of measuring the relative
ability and qualifications of the candidates,: "the marking is
arbitrary, inconsistent, subjective and not in the least
' standardized'."
Counsel for the Union made the following submissions in
support of the above allegation:
Upon cross-examination Ms. M~y Benjamin Kent conceded a
number of marks'based on the apparent inconsistencies
with the grievor's marking sheet and the "ideal
answers" the other candidates who were granted
interviews.
'Secondly, we submit that there are mor~ answers that
,should be marked as correct according to.the source
materials, notwithstanding Ms. Benjamin Kent's
protestations, give~ that the questions were so open-
ended and accordingly could not lend themselves to
predictable "ideal" answers.
Thirdly, we submit that at least two of the questions
(Questions 10 and 11) should, be'struck from the
examination and not counted in terms of the final mark.
Question 10 is very open-ended and sUbjective, the
answer to'which could not be found anywhere or derived
-from the ~ource material.. Question 11 requires
theoretical knowledge which is not a requirement for
the position.
'Fourthly, we submit that number 8 was unfair in that it
is a very technical question, the answer to which could
not be found anywhere in the source documents, and
therefore it should not be counted in the final mark
for the purposes of deciding who should be interviewed.
It is clearly information which would be learned on the
job.
Once these factors are considered, it will be shown
that the grievor would easily have reached the
threshold mark of 65%.
Ms. May Benjamin Kent agreed that the grievor should
have received the following extra marks for the
following questions;
Question 3 + i
Question 4 + 2
Question 7 + 1
Question 9 + 1
Question 10 + 0.5
Question 11 + 1
Total = 6.5 marks
It was determined that question 6 was given 3 extra
marks and therefore the net gain to the grievor through
examination and cross-examination is 3.5 marks which
brings the grievor's total to §9~ contrary to
Management's estimation contained at tab 3 of their
submissions..
In the union's submission several of the grievor's
answers should have received marks. Ms. Benjamin Kent
testified that the'answers to Question 2 were derived
from the Opportunity Bulletin, Exhibit 2. If you look
at either Exhibit 2 or 3, it is clear that the first
answer that the grievor gives can be found in those two '
documents. See Exhibit 2 under the hea~ing of
responsibilities '...will aid in the coordination of
community work programs for intermittent inmates..."
and see Duty A5 in Exhibit 3. Similarly with respect
to the third answer given, see Duty B6 in Exhibit 3.
Finally,' with respect to the fourth answer given by the
grievor, it is the Union's submission that this should
have been given marks and we rely on page 16 of the
Standards and Procedures Manual, the first paragraph
under the subtitle Reclassification and Transfer=
Purposes, wherein it states "The authority for
reclassification and transfer of both short term and
long term'inmates for program purposes rests with
superintendents." In addition, note that Mr. Heaton
received a mark for a similar answer, although his
answer was more specific.
With respect to Question 3 it is. clear that both the
first and the fourth answers should have received
marks. We refer you to page 8 of the Standards and
Procedures wherein in "personal history" is set out
citing community ties as well as a further category
entitled "Other Factors" under which is listed "active
homosexuality", "notoriety", etco These factors would
be encompassed by community background, which is surely
distinct from personal history.
With respect to Question 5 and discharge planning, it
is hard to conceive of why the grievor did not receive
full marks for those answers apart from the arbitrary
choosing of the ~deal answers.
With respect.to Question 6, Ms. May Benjamin Kent gave
the Board a very technical' explanation for why Gerrard
House and Standford House were not worthy of marks.
Clearly this must be a biased against a person who has
not had experience working in the position. These two
entities identified are accessed by inmates and are
.therefore correct, except that they are not properly
named. We submit that the grievor would b~ entitled to
at least a half mark for the two.
With respect to Question 7, it was shown in evidence
that IPD stands for Institutional Program DeveloPment
which is where the classification documents are kept.
Clearly these documents would be relevant..
The cl'eares% example of bias is the marking of Question
8. During the hearing, it was shown that other
candidates 'who listed unemployment, for example Mr.
Heaton and Mr. Davey, were given a mark. Furthermore,
Ms. Benjamin Kent attempted to distinguished the
factors listed on the grievor's answer sheet from the
"ideal answers" as the #ideal answers" purportedly
identified, factors that were beyond the control of the
inmate. This argument is surely specious as she has
included "receiving further charges while on 'TAP" and
"rewocation of bail" which clearly have something to do
with behaviour violations. Conversely, having
psychiatric'problems cannot be seen to be a behaviour
violation.in the sense that it is not culpable
behaviour.
Given that there is not. an exact science with respect
to interviewing, it is hard to understand why
"occasionally smiling" and "encouraging the client to
relax" would not be valid interviewing techniques to
· indicate one is interested in what the interviewee is
saying. The coment that is written on the answer
sheet which suggests that the grievor meant
occasionally smiling inappropriately, in the Union's
respeqtful submission, 'shows that there was
considerable bias:in the marker toward the 9rievor's
answers.
Although the tests were allegedly "blind marked" the
grievor testified Ms. Benjamin Kent took this paper
from him. Ms. Benjamin Kent was not so sure whether
she did or not. If our respectful submission the Board
should= believe the grievor on this point, but
regardless of whether Ms. Benjamin Kent knew she was
marking the grievor's paper, she clearly was
· particularly biased towards the grievor's'answers~
Question 11 is an example of how open-ended and
subjective these questions really are, contrary to Ms.
Benjamin Kent's opinion. Indeed the question states-
there are "many" factors contributing to criminal
behaviour. Surely coming from a broken home, having
poor education, and having no role model could
c.onceivably affect an inmate's self-esteem and impact'
on their decision to lead a life o~ crime. We refer
you to Exhibit "12" wherein is contained a
psychological/social report. We respectfully submit
that a number of these factors are similar to those
found in this psychological/social report which.
contribute to the inmate's self-confidence problem.
Moreover importantly, however, Ms. Benjamin Kent'
testified that candidates were not required to be
criminologists, nor were they required to read articles
on factors contributing to criminal behaviour.
In summary, the Union's submission is that the grievor
should have received the following extra marks,
Question 2 + 1, Question 3 + 1, Question 5 + 2, .
Question 6 + 1/2, Question ? + I and Question 9 + 2.
Questions 8, 10 and 11 should be completely
disregarded. On this basis the grievor would have
received the following mark; 66 1/2 out of 81 which is
better than 65%.
Counsel for'the Employer responded to the above criticisms
of the marking of the test:
At page 21, paragraph 4, under question %2, the Union
asserts that the grievor should have been given a mark
for his first and third answers and refers to exhibit
#2 under the heading.of "Responsibilities" where a
reference to "community work programs" is found. In
cross-examination, Ms. Benjamin-Kent was clear that the
C.R.C., or community resource center, is not the
community work program and therefore these answers are
incorrect. While the position specification (exhibit
3, line A5) provides that one of the duties is
"identifying suitable inmates for the ... C.R.C.", Ms.
Benjamin-Kent'was again clear that answers 1 and 3 to
question #2 did not sufficiently-match the position
specification such that an additional mark should be
provided. Finally, with regard to the fourth answer,
Mr. Weekes' response is simply not similar enough to
Mr. Heaton's response such that the former should
receive any additional credit.
With respect to question #3, the Ministry notes that an'
additional mark.was given for the first answer
"personal history". The Union then attempts to argue
that a further mark should be given for the fourth
answer "community backgreund". Their justification is
that the standards and procedures manual lists factors
such as "active homosexuality" and "notoriety" as
factors to be considered for pwoper classification.
Such factors are not demonstrative of community
, background, if anything, they reinforce the response of
"personal history". As such they are not deserving of
an additional mark because this would constitute double
counting for the same response.
In question #5 the Union states, at page 22, paragraph
3, that "it is hard to conceive of why the grievor did
not receive full marks for those answers apart from the
arbitrary Choosing of the ideal answers". In cross-
examination Ms. May BenjaminTKent testified that the
grievor's answers were not specific enough and that he
did not understand the concept of the question. It
should be pointed out that while the grievor had
difficulty choosing the ideal answers for this
question, this difficulty'was not experienced by the
other applicants as all of their marks were higher than.
the grievor's.
Ms. May Benjamin-Kent very clearly explained the fact
that Gerrard' House and Standford'House were community
resource centers and that they were not social agencies
who traditionally work with offenderS. Therefore no
addition mark is warranted for Question %6. ,.
The fact that classification documents are kept for the
institutional program development does not entitle the
grievor to an additional mark under questi6n #7 (page
23,. para. 2).
On question #8 Mr. Robert Davy's response of "loss of
employment, school, etc." received a one mark credit
and Mr. Gerald Heaton's response o~ "employer no longer
requires inmate" also '.received a mark. This contrasts
to Mr. Weekes response of "unemployment" for which he
received no mark~ Ms. May Benjamin-Kent's distinction
between these answers was that the first. two signified
a "change in employment status" while the latter remark
was only a blanket statement. This is the distinction
between Mr. Weekes' answer and the other individuals'
answers.
~The assertions that the grievor's response of
"psychiatric problems" to question #8 was a.correct
answer can not be sustained on the evidence before this
Board...'The evidence of Ms. Benjamin-Kent that this was
an "obvious behaviour violation" and that is was not
specific enough is unchallenged.
While there is no question that classification .officers
are not required to be criminologists nor are they
required to be experts, on the factors contributing to
criminal behaviour, there can be little doubt that a
rudimentary background in criminal behaviour is of
great assistance in "assessing inmate needs and
identifying possible program plans appropriate to the
individual" (exhibit 3, line A3) and "identifying
suitable inmates for the institutional work program.,
C.R.C. consideration, transfers, etc."'(exhibit 3, line
AS) as well as all-forms of providing advice and
counselling to inmates. As such, question 11 is
directly relevant to the duties and responsibilities
which classification officers are expected to perform
in contrast to the comments which-are found at the
bottom of page 24 of the Union submissions.
In addition, the Union points out a number of answers
which.it alleges should have been considered correct
answers for question #11. We would simply reiterate
the chairman's comments which were made at this point
of the cross-examination, that is, that there were
simply two philosophical differences between the
Union's'position and the Ministry's position and that
the parties were on a treadmill to oblivion. In light
of the fact that there was no evidence to contradict
the Ministry's position, it is our submission that the
Union has not proven their case.
There were a number of submissions~b¥ counsel for the
Union relating to the credibility of Ms~ Benjamin-Kent. Although
we believe that she. did not wish to mislead the Board, there were
certain parts of her testimony which caused us concern. We could
not agree with her assessment that the essay tested the ability
to maintain good interpersonal relationships~ We agree with
counsel for the Union that it could not objectively be seen to do
so.
We also could not agree that an inmate's employment history
was not important in determining whether he was suitable for
participation in the community resource program (Question 7),
which is a community program for the employmen~ of inmates.
We were also concerned with Ms. Benjamin-Kent's evidence
that she expected the."expert candidates" to go beyond the
material provided. She expected' that one of the sources of
information would be other Classification Officers because some.
information could not 'be found in any manual of standardB and
procedures. This is a particular matter of concern as Ms.
Benjamin?Kent, in her cross-examination, acknowledged With
respect't° Question lO that she and Mr. Morris were using their
own judgement and felt that the answers w~re "right."
As stated above, we do not suggest that there is no place
fo,-tests as are commonly conducted in the public sevice in
assessing the qualifications and abilities of candidates. Panels"
of the Board accept the use of such tests where they adequately
and fairly question a candidate's qualifications and abilities as
they relate to the'duties and responsibilities of.the posted
" positiOn. Here, there was no finding that the Grievor did not
have the qualifications and abilities to perform the' posted
position. That is, he was not screened out because he did not
have one of the "must haves" nor.because he did not have one or ..
more of the "should haves" but because he did not meet an
artificially chosen standard: sixty-five marks or above on the
written test. In fact, he had at least fifty-nine marks.
We have concerns as to some of the other marking and also
find that"the Employer .should have supplemented its knowledge
with respect to the qualities tested by. examining the Grievor's
personnel file, including his periodic evaluations, and a~so
should have obtained in,ut from his supervisors.. If it had done
so we feel that some of its conclusions might have been altered
in favour of the Grievor so tha't he would have been granted an
interview.
In the circumstances, we do not feel that the Grievor was
fairly assessed in accordance with the requirements of art. 4.03
by means of the pre-screening written test used by the Employer.
That is, in the circumstances of this case, the 'almost total
reliance by the Employer on the test score as the only pre-
screening mechanism, without seeking other relevant readily
available evidence relating'to the Grievor's Job performance and
other related experience, amounted to a failure on the part of
the Employer to carry out its obligation to make its decision on
the basis of available relevant evidence bearing upon the
Grievor's ability to perform the required d~ties of the posted
position. However, we do not believe that the formation of the
test, its administration or marking were sufficiently flawed sp
as to warrant a complete re-run of the written test in some
75
altered form with directions from the Board with respect to its
administration. A more appropriate remedy, which the parties may
wish to consider, there being no evidence of bad faith in the
administration of the test, would be to require that the Employer
first: (1) to review the Grievor's personnel file, including any
evaluations (2) to obtain the input of the Grievor's supervisors
(3) to review the additional documents and information that were
tendered and adduced at the hearing, prio~ to reconsidering, its
decision not to afford the Grievor an interview. However,in
accordance with the.agreement of the parties, we will ask the ~
R~gistr.ar to schedule a further hearing in order that the nature
of the appropriate remedy can be spoken to by counsel.
Dated at Toronto, Ontario, this 5=~ay of July · 1991.