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HomeMy WebLinkAbout1989-0902.Watkin.92-01-09 ONTA RIO 'EMPL 0 YES DE I...A COURONNE CROWN EMPLOYEE$ DE L 'ONTARIO GRIEYANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS - ~80 ~DUNOA$ STREET WEST, su~TE 2IO0, TORONTO, ONTARIO. M5G rZ,9 TELEt~'~ONE/TELE.m'~ONE.' (4~6) 326-1388 '180, RUE DUNDAS OUEST. BUREAU 21~. TORONTO ~ONTAR~O~, MSG 1~ ~ F~CSiMILE/T~COPtE .' (~6] 326-~3~ 902/89 IN THE ~/~TTER OF ~ ~BITI~TION Unaer THE CROWN EHPLOYEBB COLLECTZVE B~RGAZNING ACT BefO~ THE GRZEV~CE SETT~~ BO~ BE~BN OPSEU (Watkin) G~ievo~ - ~d- The Cro~ in Ri~h~ o~ Ontario (Minist~ o~ Heal,h) Smplo2er 9EFO~: J. Samuels Vice-Chairperson ~. Robbins Me, er G. Milley Me~er' FOR THE R. Wells GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE S. Shamie EMPLOYE~ Counsel Hicks, Morley, Hamilton, Stewart & Storie Barristers & Solicitors FOR THE P. Brochu THIRD PARTY HEARIN~ November 21, 1991 ?. 2 In February 1989, the grievor applied for a posted position of Economic Consultant, with the classification Economist 4. He was not successful, and he grieved that he ought to have been selected because he was the best candidate. In two earlier awards, we dealt with several preliminary matters. In the first preliminary award, after a heating in December 1989, we ruled that the grievor could proceed with his grievance though, by then, he was in a position classified as Economist 4. He wanted the particular position in issue and he was entitled to a ruling on this particular grievance. The second preliminary award, after a hearing in April 1990, dealt with the fact that, when the grievor first applied for the position, there were two like positions posted, and they were filled by two others--Mr. P. Brochu and a Ms. Ong--yet the grievor's claim was only against Mr. Brochu's position, not Ms. Ong's. This Board, in its first award, had questioned the grievor's right to challenge only Mr. Brochu's right to a position and not Ms. Ong's as well. We had asked "Suppose that we were to find that the three leading applicants were, in their order of merit Watkin, Brochu, Ong. How could we say that Brochu should be displaced rather than Ong?" In our second award, we said that we now knew that Ms. Ong had been placed in her position, not as a result of the competition which was challenged by the grievor, but as a result of the settlement of a grievance relating to an earlier competition. This settlement had been made after the competition which the grievor challenged. And, as a result of the settlement, it was now the case that the February 1989 competition was in respect of only one position and the two primary competing candidates were Brochu and the. grievor. Therefore it was proper for the grievor to challenge only Mr. Bmchu's right to the posted position. In July 1990, we heard the grievor's testimony. 3 Though several h~aring days were scheduled in late 1990 to hear the Ministry's evidence, each was adjourned as it arrived. We understand that the parties were exploring the possibility of other, outcomes for the grievance than continuing with the hearings to the end. But these other outcomes were not reached, and we reconvened in November 1991. At our last day of hearing, before calling any evidence, the Ministry moved for a non-suit. Article 4.3 of .the collective agreement provides that, "in filling a vacancy, the Employer shall give.primary consideration to qualifications and ability to perform the required duties", and that "where qualifications and ability are relatively equal, length of continuous service shall be a consideration". Mr. Brochu was more senior than the grievor. Therefore, for the grievor to succeed, he must show that he was more than "relatively equal" than Mr. Brochu. The grievor must show that he was superior to Mr. Brochu in terms of qualifications and ability to perform the required duties. The Ministry's primary arguments in support of the non-suit were that the Union had failed to make a primafacie case that the grievor was superior to Mr. Brochu, and that the Union had failed to make a prima facie case that the selection process was improper. In our view, this application for a non-suit must fail. As was said by the Board in an earlier decision, "a motion for non- suit requires the Board to decide whether the grievor has led a sufficient quantum of probative evidence to make a prima facie case". And "in a grievance involving competition between candidates, where seniority is not relevant until relative equality between candidates has been established, 4 there should be evidence as to the qualifications of both candidates'; (Fish, I39/77, at page 6). This prima facie case is made in the grievor's cross-examination. The grievor testified concerning various conversations he had had with Mr. W. Leach (who was the Manager of the unit in which is found the posted position, and the man who chaired the interview/selection panel). The grievor said that, both before and after the competition, Mr. Leach had told him on a number of occasions that, in his (Leach's) view, Ms. Ong and Mr. Brochu were not competent for the positions. Furthermore, the grievor testified that, after the selection process was over, and the grievor told Mr. Leach that he would grieve, Mr. Leach said that he wished the grievor would win because he was the best for the job. These statements by Mr. Leach must be treated as an admission by management that Mr. Watkin was the best candidate; and this admission is all the evidence we have unless the Ministry responds to it. Without a response, the grievor has made his prima facie case. If we had heard evidence from Ministry witnesses, perhaps we would have concluded that the grievor was not the superior candidate. The interview/selection panel consisted of Mr. Leach, Mr. G. Simpson (the Manager of Community Information in the User Support Branch), and Ms. S. Rodela (a personnel officer). So Mr. Leach was the best person on the panel itself to judge the qualifications and ability of the candidates. And the only evidence we have suggests pretty clearly that he had no doubts about who ought to have won the competition. This testimony spoke about the relative qualifications of .both Messrs. Watkin and Brochu, and involved an apparent admission by a most important member of management concerning his assessment of their relative qualifications. This distinguishes our case from several cases where the Board has granted a non-suit of a competition grievance on the ground that the Union's evidence was insufficient to demonstrate, on a 5 prima facie basis, the relative qualifications and' ability of the candidates-- Fish, 139/77; Genys; 52/80; Tofano, 478/82; Solomon, 1397/84. In all these other cases, the Union's evidence showed only that the grievor had the requisite qualifications and ability, and said nothing substantial about the qualifications and ability of the other candidates. In our case, we have prima facie evidence about the qualifications and abilities of both candidates. Mr. Watkin also testified concerning a number of statements made 'by Mr. Leach which suggest that the decision was not up to him, nor Was it up to the interview/selection panel, and that someone else was making the 'decision. , Mr. Watkin scored highest, based on the resumts and interview answers, achieving 81 1/2 out of 100, to Mr. Brochu's 80. This difference is not significant. But here we have other evidence than the interview scores. The apparent and uncontradicted admissions by Mr. Leach do establish a prima facie case that the grievor was superior and ought to have been the successful candidate. In these circumstances, we dismiss the application for non-suit. Both parties agreed that, if we dismissed the application for non-suit, we ought to order a re-run of the competition, and we do so. This competition will be open only to Messrs. Brochu and Watkin. In order that the competition will be as fair as possible in all the circumstances, we order that the interview/selection panel should consist of three persons, none of whom had anything to do with the February 1989 competition (this would exclude, among others, any of the February 1989 panel members, and anyone who acted as a reference for Messrs. Brochu and Watkin in 1989). The interview/selection panel itself is to conduct the interviews, review the personnel files, consider the references on behalf of the candidates, consider any. 'other relevant information, and make'the decision itself. The interview questions are to be established in such a way that they do not give any undue advantage to Mr. Brochu as a result of his period in the pos'ted position. If the grievor is successful in this new competition, then he is to be placed in the posted position, and is to receive compensation for any monetary losses he suffered as a result of not getting the position in 1989. We will remain seized to consider any issue resulting from this order and the re-mn competition. Done at London, Ontario, this 9th day of January, 1992o J. W. ~amuels, Vice-Chairperson "I Dissent" (dissent attached) G. Milley, Member War,in 902/89 D I'S SENT I find myself in.disagreement with my colleagues for the follow- ing reasons: 1.The paucity of evidence cited to support their conclusion. 2.The failure to give sufficient weight to jurisprudence which shows that where the grievor has less seniority than the other applicant, arbitrators have required the grievor to establish that he possessed "substantially and demonstrably" more ability than the more senior Person selected for the position. 3. The fact that the grievorpresented no evidence to show, nor did he attempt to show that his qualifications and ability were superior to those of the successful applicant. He relied solely on~ the proposition that the selection process was flawed and for this reason only the results of the competition should be set aside and a rerun ordered. With respect to the first reason, in Fish 139/77, The Board said at page 6: "A motion for non-suit requires the Board to decide whether the grievor has led a sufficient quantum of probative evidence to make a Drima facie case. In this case, the Board finds that the grievor has failed to do so, and the motion for non-suit is gra- nted. In making a complaint that the employer violated article 4.3 of the collective agreement, it was up to the grievor to show the nature of the work to be per- formed, his ability to do that work, and the relative equality between his ability to do the work and Mr. Ouelette's'ability to do so. While it may be possible to regard the job advertisement as indicating the nature of the work and while we have evidence of Fish's qual- ifications, we were presented with no' evidence of Mr. Ouelette's qualifications - even though Mr. Ouelette was present at the hearing. In a grievance involving competition between candidates, where seniority is not relevant until relative equality between candidates has been established, there should be evidence as to the qualifications of both candidates." page In the instant case, the grievor's evidence did not show the nature of the work to be performed; he did not show his ability to do that work (other than on his application);' he did not show any comparison between his ability to do work and that of Mr Brochu. No evidence whatsoever was presented with respect to Mr. Brochu's qualifications, even though Mr. Brochu was present at the hearing. Thus, with respect to the criteria set forth in the Fish decision, none has been met by the grievor in the instant case. My colleagues rely on one reed to justify their dismissal of the motion for a non-suit; the evidence of the grievor that Mr. Leach had told him that in his (Leach's) view, Ms Ong and Mr. Brochu were not competent for the positions, and that Mr. Leach wished the grievor would win the grievance because he was the best for the job. With respect, this unsupported statementby Mr. Leach appears to fall well short of what is required to show the grievor as the superior candidate and to establish a prima facie case. Alongside this evidence are the results of the competition interviews and tests which show Mr. Watkin scored 81.5 percent and Mr. Brochu 80 percent - an insignificant difference. Additionally, the grievor's evidence was that Mr. Leach had told him that his (the grievor's) references were"not glowing." The grievor himself, in cross examination, acknowledged that his references were not as good as they might have been. We cannot accept Mr. Leach's opinion as being conclusive of Mr. Watkin's qualifications. It is well established that personal preferences and relationships often influence the attitude of Unit heads towards their subordinates. Further, notwithstanding Mr. Leach was chairman of the selection panel and Manager of the Unit where the posted position was located, he was only one member of the panel. We have no evidence on page 3 the other members' opinions. However, as stated, we do know that the panel accorded both applicants almost identical scores on their interviews and tests. It is also of some significance that Mr. Brochu had been acting in the position sought for some months prior to his appointment and his qualifications and ability would have been Known first hand to his superiors. If Mr. Watkin were the superior candidate, it appears most unusual that the position was awarded to Mr. Brochu. Thus, despite Mr. Leach's purported opinion that Mr. Brochu was not competent to do the job, his appointment would appear to indicate otherwise. As stated by the Board in Genys 52/80, page 8: "As Ms. Stevens said, there is some evidence --- that of the grievor himself and statements in the two applications. In the Board's view, such evidence is not sufficient to establish a prima facie case that the grievor's qualifications and ability are'relatively equal to those of the successful candidate. His own testimony merely informed 'us of his own experience and qualifications and gave no indication whatever of Mr. BisPo's qualifications and ability. The Bispo application is a fr~l reed on ~hich to depend for an assess- ment of his credentials and provides little basis' for comparison with those of the grievor." With respect to my second reason, Fish and the other cases cited at page. 5 of the award referred to situations where the grievor was senior in service. Thus, all that was required under Article 4 of the Collective Agreement was that he estab- lish that he was "relatively equal" to the successful candidate. However, in the instant case, the successful applicant, Mr..Brochu, was senior to Mr. Watkin. Thus, in order for the grievance to succeed, he would have to show, not that he was relatively equal, but that he was superior. Canadian Arbitration, second edition, states the following: page 4 6:3220 Senior employee if relatively equal ... If the grievor were an employee who had les~ seniority than some or all of the other applicants, arbitrators have required such persons to establish that they possessed "substantially and demonstrably" more ability than the more senior person who was in fact selected for the job. With respect to the third reason, counsel for the grievor stated at the outset of the hearing that he would rely only on the position that the selection process was flawed. No evidence was adduced on the qualifications of the candidates and it was not the intention of counsel to do so. "We dont know Brochu's qualifications and we havent tried to prove them." Our case, he said, is based on one proposition that the selection process was flawed' and it required a rerun. Notwith- standing the thrust of the grievor's evidence, the majority award, in rejecting the employer's motion for a non-suit, has proceeded in a different direction. It adopts the position that Mr. Watkin was the superior candidate. In so doing the Board places upon itself an onerous task. Not only does it have to overcome the jurisprudence where non-suit motions were granted where the grievor was the senior and the qual- ifications requirement was only "relatively equal." The Board has the greater difficulty to defend its decision where the successful candidate is more senior and thus, the grievor must be shown to be "substantially and demonstrably" more competent. In my view, the grievor's evidence fails to establish a prima facie case and the majority award erred in its conclusion. I would have upheld the employer's motion for a non-suit. Respectfully submitted, ~4~F~ /~,~ Georg~ille~' ~ Board Member