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Home My WebLink About1990-0612.Rankin.91-02-14 Î , ;......~ , - ce; ." t:"-.,' -.;.,~ ~:. ~':'1'''''~'~~''''1; ONrARIO EMPLOYES DE LA COURONNE . .. ~ :~ CROWN EMPLOYEES DEL 'ONTARIO , ' ,-. 1111 GRIEVANCE CpMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS /80 DUNDAS STREET WEST, SUITE 2100. TORONTO, ONTARro, M5G 1Z8 TE:LEPHONE ¡TELEPHONE: (416) 326-1388 /80, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO]. MSG ,Z8 FACSIMILEITËUtCOPIE: (4161 326- /396 612/90 IN ~BE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Rankin) Grievor - and - The Crown in Right of ontario (Ministry.of correctional Services) Employer BEFORE: M. Watters Vice-Chairperson J. McManus Member o. Daugharty Member FOR THE R. Stephenson GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE A. Legaul t ' EMPLOYER Counsel Fraser & Beatty Barristers & Solicitors HEARING: . September 26, 1990 January 7, 1991 . - - >-->-- ....- .,..~-~---------~. -'.. "-- - . -.. I '"J . -~ - ~- I , I . . .. ¡his proceeding arises from the grievor's "¡ e.ck of success 7:1 a job competition for the position of Correctional Officer 1 (C. O. 1 J at the Vanier Centre For \A/omen. ¡his competition ;.-. ::..-1 11"-..... been re-run pursuant to an Award of the Grievance Settlement Board dated July 18, 1989. The prior panel determined that the grievor had been misled as to the nature of the competition process as a consequence of certain documentation forwarded to him by the Employer. It also accepted the grievor's assertion that the misunderstanding led to his mediocre performance during tne orat i nterv 'Ì e\..,¡ . . At the commencement of the hearing before this Board, ,a substantial amount of documentary evidence was filed on the . agreement of both parties. ' A list"of the exhibits then ~endered is attached hereto as SChedule ~ A' . The Union called the grievor and Mr. R. Townsend as witnesses. This latter gentleman was the successful applicant, albeit not the cand~date with the highest score. The Employer elected against calling any evidence. The Union did not seriously contest the procedure utilized within the competition process. Rather) it argued that the grievor had established a prima facie case of relative equality before -.:his Board and should therefore have a valid claim to the job given his greater seniority. I 1 .... _.....~._....."'.......,. ...............---.- ... ..__'·'~_T"'~"..'" ...._._. _.~~~_............ . ·__~"¥"_T_~···_ ,. . ,r ._..._._. .... . n. h _.... .-.. __ '" _.. ._." . _~._". ..Cp. .. ... .' -- -~.. . r" _..._ .. ,u . ." .. _~,...,.._~_ __..u t ., ~ '\ , ~ ~ T:'-'~ e~/ ~ den ce led may be br~e~~j summarized as f::;:~,~ws: ( i ) The gr18'10r, age sixty-three (63) , has been a ":\:: r-~=''': t. i ona 1 C~-=ícer s~rice ~='"7"7 .'-ie ;,¡ as ....c~ k eci at ::~·12 :"!&-:(-C' ! -' ; { ~ Toronto West Detention Centre since 1980, He had previousì! worked for a two ( 2 ) year period at the Mapiehurst Correctio~al Centre. The grievor has been classified as a C,O.2 Since î9ì.3. ~e ~s'now paid, however, at the C.0.3 rate as a consecuence ':if another dispute unrelated to this matter. The competition here I ì n issue was i n respect of, a C.O.1 (Underfi 1 ~ ) positicn~ ' - ~:-;= lac: :j:;:'.Q .'"'" successf\;: , t~e mc,vg wcu~j have \:on:3~'~~~~e~~ I -; I'" ~ 8' It' Q ,- ~__L . - I lateral transfer. The Board was informed that he sought the n8'.'¡ I position as the work iocation wa~ closer to his home. The -' grievor also believed such work would lead to fewer injuries. . (i i ) The grievor testified at some 1 ength' in respect qf hi s, . past work as a Correctional Officer. He described a wide range of responsibilities which he had performed vis a vis Adul~ Males, Adult Females, and Young Offenders~ It was his assessment that he had performed all of the dut1'3s and resQonsibiiities 1~sted Jr. the position specification for the job sought. In the grievor's words, he "has done it all," Additionally, the grievor has been periodicall; cal1ed upon to serve as an Acting Corporal. ""/e we;-~ advised that he was in charge of between sixteen ( 1 6 ) and twenty (20) staff when he assumed ~his higher level of responsibi~ity. It was the grievor's evidence that he has acted in such capacity from time to time since at least 1980. In the past year, the grievor has also acted as a Unit Manager on three ( 3 ) occasions, 2 .. -~- ~ . ,c ~~_ ~ ... .,- - .~ . -. . , . I - ' < .., !;¡ view of the pos~t~on taker by the Un~or, î .... ~~ -; 1 1 / ' '- ' .", unnecessary to detail a 1 ì of the various steps taken in this ccmp9t~ticn. -.... ~s sufficient for uS :'0 note that a Id(~t~2n ~ h (;¡m J. 'j was given to all of the candidates on February 14, 1990. This was followed by an oral interview before three ( 3 ) panelists on February 21, 1990. The scoring summary prepared by the Emp"oyer reads ln part: candidate Score Given by Score Given by Score Given by Total Score ~, '" N. Harvey M. Stewart B. Ross - Brace 93.5 94.5 96.5 28.11.5 A'" ~ -c ~ 'J Smykal 90 94 95 279 47.6 Townsend 122 123 127 372 .~ " - 0..::..0 Rankin 108 1 1 ~ 112 331 56.5 Klacik "Successfu 1 in previous competition. Ci .2022.90 .. Bamford 133 .. 13.1 ¡' 38 'A05 69.2 These total scores include the marks assigned for both the written examination and the oral interview. The maximum score that could be awarded by each panelist was 195. The f i rìa ì se': re for the grievor should have been 332 rather than 331 given an arithmetic error in the computation of the scores. The addition of this one point 15 immaterial to t.he resu1t in this lnstance, As 18 readily apparent, the grievor was the third ranked candidate based on tota1 score. He was ranked fourth out of five on the written portion of the process. ( i y ) The position of C.O.1 (Underfi 11 ) at the Vanier Centre For Women was ultimately awarded to R. Townsend, another employee '" ..:. .'..~ _'_n~_"~___.'_~·"_._._"_ _.. '_.'_T_ L _..'~--",..-- - .......- ......- L__"_.-..'..._ ..,._.,"..... _T~L,_,_. _.. ... '''_~:'' ....~ _L ,.___ '... '...,' _, _'..,...._'_._._'" _._,...~__ .,.. .._L._"_____ __.____.._.h._.__ ~ ., , " . ::it the Metro Toronto West Detention Centre. ,\1r. T:cwnsend has been a Correctional Officer since October of 1987 and, therefore, nas cons~de(abìy ~ess senicrity tnan the grievor. The Soard 'Has not apprised as to why the job was not granted to D. Bamford, the candidate who achieved the highest score. More specifically, we were not told if he was offered the job but rejected it, or whether it was given to Mr. Townsend on the basis of seniority. Similarly, it was not made clear as to whether this result was dictated by a review of personnel fi les or supervisory comments. ( '/ ) ;v1r. iownsend no 1 anger ;tJorks at the Vaniar Centre i=c,r Women. The position was SUbsequently filled by a third individual presumably by way of another competition. On the initial day of hearing, this Board ruled that this person was not . . to be treated as a'third party for, purposes-of this proceeding. We came to this conclusion on the grounds that they had no direct ) involvement in the instant competition. In our judgment, any rights the individual might possess were subservient to those of the grievor. The relevant provision in the collective agreement is article 4.3 which reads: In filling a vacancy, the Employer shall give primary consideration to qual1fications and . ability to perform the required duties. Where qualifications and ability are relati!elyequal, length of continuous serv ice sha 11 be a consideration. 4 ., _.-~. .-. ... - . ' - . . - ~. -- --~ .~ ,", ~~-- . " -~~, ~ ~ ' ., , ::: ': \.'J8.5 the ;:·)sìt1,-::n s-f ~he Uricn t h .3. t a .:;..... i ~a f '3,''':: i 9 cas~ - ' relative equality had been estabìished as between the grisyor anc '.:..... 4 -:- ::','IIr:senC-l. :~~nsel ;::':í ~.. ~-: e IJ r: ~; en s\..,,¡'c:Yf~ ~-:.ac: +- ~.... ,- ~ ~<~"\e =:r:ç i.::' y e r~ : v ~ I':=' l.....- by virtue of its d~cision not to call evidence, had failed to meet the evidentiary onus requiring it to justify the decision taken. Put another way, it was argued the Empìoyer had not dèmcnstrated that Mr. Townsend was demcnstrably superior t.o t~l e grievor 1n terms of his qualifications and ability to perform tfî8 re,:;L.: ired cL;t;es. In this r-egard, we were asked .¡.- d-isc3.rd 'v! r'" . <-.0 ::: ~j"":- __: t- -:: ~ 3C~-: ,"-~S " - -31.1 - ::;e,'''C2 ,,,a,5 ""'cc. " '9C ~~s ......-.. ~ i:; :/ ::-& '·..¡as ,"\......- - -~ ~ '- - '~ selected. From ,the perspective of the Union, the real contest ,..¡as between the grievor.and Mr. Townsend. The Union asked thá~ we not place great significance in the scoring of the competition . 9 í ven the Employer's ·decis;·on not to lead evidence as to the" basis fOr same. In any event, it was further submitted that a difference of approximately seven percent (7%) was consistent 'Ni th its argument of relative equality as between the two ( ? \ ... ) candidates. :=or these .....easolìs, the Beare \NaS aSf<,ed to av;a:d -: 'r¡ 8 position to the grievor. Counsel asserted that, in the circumstances, an order for a second re-run would be inappropriate. Emphasis was pìaced on the fact that the successfuì candidate, Mr. Townsend, was no longer in the job. . The Union relied on the following awards in support of its d posití00: Consumers Glass Company Limited and Aluminum, Sri ck And Glass \</Qr~ers Lqcaì 269, unreported, (Shime, December Î 986 ) ; Andersen at a 1 .. 1 2132/37 (Forbes-Roberts). 5 _'. ~.. "....._ r_ _ ..' r_~. _. .~ _, _ ..... _... ...~. _ _ __..... _.. . ._.. _u_~ "._ __ _.___u __. __'~_. __ .. . _._. ~.. _ .. .__T.~.__''''''''_'''' ---h-,o_.__.... .n__ ..~ ... ~~- .. - c····.. u - _u.' _.CT - ~ .~- --.~--~.-...,- u_ . -- -~. - ... -' . " In C;Or~sIJíf!er 1';1,::\88: t:-·ìtd C{;a~r;J6rscrl l.~as ~:::nf:Qr;~ec~ '~4/~~h .~ competitive job posting provision substantially similar to tne ens before :'hl8 3·:Jard. It) the course ofa.~;~)I:Jing 7:t~E: g.r~·,=v\:L·~.:E:¡ several pertinent comments were made as to the burden of proof in, cases arising under such a clause. Given their reìevance to this proceeding, we elect to quote from this award at some length. ihe following statements are found between pages 6 3nd 9 of the decision: .. I n effect, there are two aspects to the i nqu i ry '.-Jhe reo the seniority clause involves a competition bet~een or amC~"19 amployees~ 7he -F~rs~ :S -::0 e~<,3m~rl8 ;::~e 2"'~~'/:r>5 qualifications and his or her claim to the job. The second is to examine the basis for the employer's decision which usually involves the employer demonstrating how it has complied with the criteria under the collective agreement and~ based on that criteria, why it seìected a particular incumbent and rejected the grlevor. This last part'of the employer's consideration as to why it has rejected the grievor .. generally merge~ or overlaps wiih ,the evidence of the' grievor. A board of arbitration is required to weigh both aspects of the evidence. It first must weigh the grievor's qualifications and then must weigh the basis for the employer's decision. The employer's decision will no doubt include its assessment of the grievor's qualifications weighed against the job and against the merits of the other competing claimants for the job. .. . .. . . . . " . iii .. . . . , -II . . .. . .. . . " .. . .. . .11-11 . . ... . . .. " . " " " . . . . .. .. .. . .. .. . . .. .. " . . . . . -II .. oil .. . . . " . . . . . . .. .. . iii l' .. .. .. " . . " .. . . . . .. .. . " . . . . . . . " . Of some concern, is the procedural aspects of these competition cases. As I have indicated the extent of knowledge of a grievor is often limited. The grievor wilì know about his own background and experience and will generally venture a guess that he or she is able to perform the w9rk. We are not talking about a situation where the grievor may have performed the job and is aware of its content and his or her abi1ity to perform. Rather it is usual to be faced with a situation where an inference must be drawn about the grievor's capabilities to perform the work. 6 -.- _ ___ . _.. "<" ......'. ..J ~_......._.~ ._,_~.. . ... . -. _............_~',-,- ,yO. ~...... ~ . ~ ,'.. t t-!cweve"-, -it is alse vitai tc ~,now the errp'1oyer-'s Sí management's view of the situation. Thus, the employer's view of the job and the basis for reject~ng the grlevor are relevant. As well, the employer's assessment of the competing employees 18 íe~evant. It is this assessment and the consequent decision that are critical in these k1nds of cases, No one else possesses that knowledge about the relative assessments and the basis for the decision. It is for that reason that the onus of adducing evidence should fall on the employer and an employer who fails to call evidence on a critical matter runs a great risk of having the case decided against it. What evidence then must the grievor or the union adduce in order to establish a prima facie case where there is a competition clause'. First, the grievor m0st establish his or her greater seniorìty. Second, the grievor must demonstrate some potent~al to de ~he ~ork. In this regard, the evidence may be very sKimpy or sketchy. If the grievor has done the job satisfactorily before; even on a temporary basis, the ful1 onus will be satisfied. However, if the grievor has not done the claimed job, he or she may have little knowledge of the job. Thus, some background experience in the plant or' off ice as the cage ,may be,' coup 1 ed wi th an assertion on the part of the grievor that he or she could do the job may be alì that is required, Indeed; there are many situations where that is the extent of the union's or the grievor's knowledge and accordingly there is no factual basis for compelling the union or the grievor in these circumstances to adduce more evidence than they are capable of adducing. At that juncture, since the employer will have a more complete understanding of the job, and the job content, it should be incumbent upon it to call evidence to show why the grievor was not given the job and why someone else was chosen. " ~ . . . l . . rI . . . . II . . . _ . . . . . .. . . .. . . . . . . . .. . . .. .. , . ... II- " . " Ii ø . . . ~ I ~ t .. .. .. . . I . .. , . . " .. I . I . .. . .. ~ . 111 I . I " . I .. .. .. .. I .. .. .. .. . . .. .. .. I .. . It , .. .. . .. .. Jo .. In summary, it is my view, that while the onus of proof in cases involving a competition among employees remains with the union, there is an onus on the employer to adduce evidence about those aspects of the matter which particularly lie w1thin the employer's competence and knowledge. Very limited evidence is required from the union or the grievor to make out a prima facie case. After all the evidence has been adduced, a board 1S requ1red to weigh the relative merits of the parties respective positions which includes making an assessment of the persons competing for the job. If on the balance of probabi1ities the 7 ..,_~'__·u' 'n .'n'''_''_~.. .._ ·~n.o__'~_. ' . . __ .__,.__.-"_. .__ ~__"_~_ '~_L. _ ..... __"'_._'._~ .... . . . _. .. ....__. ,.. . nU ,,_r_, ",._ . .. "'.,--...-.,. ." _.' ......-----.-. _..._~_.. ... ..o ._ . ... .._..... ..o_ .. ~ ~ ;- -: .> gf e\¡()(" Î S :""!C7: relat~'¡ely e(~lial, :'>8, Lni·~f1 wi"1 1 have fa led to satisfy the onus and the grievar"'ce wi 1ì be dismissed. " The approach reflected in the above excerpts was emplo/ed by I the Grievance Settlement Board in Andersen. That case involved a . I competition for the posìtion of Supervisor, Records Unit in a I Support Services Office of the Ministry of Transportation. The four ( 4 ) grievors al1 had greater seniority than the successful candidate. ,4dditiona1ly, three ( 3 ) of ~he grievors had se r'/ ad in ,- ."'" a,--....; ....,,"'" :.apaci:./ 1 n the very pc-s~~~cn be;r:~ sought. . - tne - > , ._ :.... ~ . L:::: 1-, '.¿ outset of the hearing, a considerable amount of documentary evidence was filed on the agreement of the parties. The documentation was of the type ~ubmitted in the present case. The Union also calleu three (3) of the grievors to give viva voce , evidence. Following such evidence, the Employer moved for ~ non- suit. In so doing, it argued that the Union had not met the onus of establishing at least a prima facie case that the grievors ',.¡er-e ~elatively equal to the successful candidate for purposes of article 4.3 of the collective agreement. This argument was rejected by the Board. With respect to the question of onus, it stated: "Because of the nature of a Job competition the Union need only adduce sufficient evidence to bring the grievor(s) and the successful candidate within a common circle. Given the evidence reasonably within "its grasp the Union must only establish the relative equality of the candidates vis a vis their qualifications and abilities. In other words it is only incumbent upon the Union to get the grievors into the competition. The onus then shifts to the Employer to explain the ... 0 .--- - . c_ , , .-- ~.."" . .- -".. ,..... .. ,~_ L .. -,- . . :'1är.ner ~r~ Il'Jn~ch PC) i --::'.:; ¡,·¡Er-3 :3,;'-';2.rded: ~(-::. to;) è:..,S';:"=: . oJ:;J ~ . ultimate choice. " (pages ,?-,,\ ~ vI Äfter reviewing the documents submitted, the Board concluded that 'the Union had established relative equality such that the í:mployer was obliged to justify its ultimate choice. Accordingly, the motion for non-suit was denied 3.nd "':he grievances were allowed. - ,r-espor3~ l . - NaB -:;-;e ;:-os~·t~c-.-; ,::7 - ~-. ~ = 7: ;:' . :: .~.. :3 ,.. ~ ('t.:1 -: " ~ - ' ~ ·~I '-" Union had failed to establish a prima facie case of relative equality. We were urged to conclude that the evidence presented focused solely on the qualifications and ability of the grievor. . .It was further submitted tnat the Union had failed to lead evidence as to the relative seniority of the candidates. In substance, counsel claimed the Union had not satisfied the onus of showing that the Employer had erred in its ultimate decision. The Employer also argued that r-1r, Bamford's scores should :e considered in any assessment as to the existence of relative equality. It was the submission of counsel that the difference , , between the grievor and Mr. Bamford discìosed 1n $COrlng a situation of superiority 1n favour of the latter candidate. In any event, the' Board was asked to find that article 4.3 does not dictate the result in instances of relative equality. We were asked to note that where qualifications and ability are relatively equal, length of continuous service is only a 9 .. _,.._,,,_.......~_..""" _h_..__+'___....~__. ,.._ .....,.~_,.._.... ...___n C",_+o .__ <r_~ _ .. .. ."._____ C.~... ~,_~.._..... _.L U. ._ ___k._...~ __......_.____._ _~_.--. __._~ _............,._. ..__.~.,._,__ __, .__..~_. _......,___.L____..____~.....~. .~_.._. - __U_.._ I , . - ':' consi-:eîaticn. L.astlYl counse1 for the Employer sL.;çgested t- t-. _~ ~ ..... ~ i"-"'..... we should defer to management's opi~ion 1n this matter g'1 "/en that the process was fair and rsasonabìe. ihe a~lJard So ~ ornon , I ln 1397/84 {Draper) was relied on ,in support of these submissions. In Solomon, the grievor claimed he was unfairly denied promotion to the position of Research Clerk, classified at Clerk 4 Genera 1 : The grievor was the only witness called by the Unicn. The award noted that the evidence entered through the gt'ie'lor relat<;!d to h'is qua1ifications and ability to f i , 1 the ,~o.3teC: position, and to his seniority. The Employer ~lected not to ca 11 eyJdence and made a,motion fbr non-suit. It submitted, inter a ì i'a that as there was no evidence as to the attributes of the . successful candidäte' the Union had failed to produce'the evidence necessary to support its case. This position was sustained by the 80ard which stated: "While it may be that the evidence apduced by the Union establishes that the grievor had the qualifications and ability required b/ the posted position, it does not constitute a prima facie case that his qualifications and ability were relatively equal to those of Ms. MacIsaac. For present purposes the responsibility of the Selection Committee may be described as being to determine whether or not the qualifications and ability of the two applicants concerned here were relatively equal. It is the obligation of the Union to bring evidence tending to show that the determination made by the Selection Committee was wrong and that the quaiifications and ability of the Grievor were, in fact, relatively equal to those of Ms. MacIsaac. This it has not done. " (page 2) 10 ~--- ,"~ - ._-~ .. - _ L'~ _ " " .- ~ ~. .. . - - .,. -.." - - . .--.,..- . . , This panel of the Soard prefers the approach ta(;sn ¡ n -:: r:8 Ccnsumers Glass and ,!:.,ndersen awards. More particularly, I¡.i h c¡ 1 e VI e recognize the Union has the ultimate onus, we agree tha~ the Employer must produce evidence as to the reasons far its selection if the union has established a prima faci'e case of relative equality between the grievor and the successful I candidate. The 80ard also accepts the validity of the comments I I made in Consumers Glass as to the quantum of evidence that must I initial1y be led by the Union to make out a prima fácie case. 'w'/e I ~;1it1k the a.pproach suggested 1 n tnat award better ref~ect.3 4- 1.- ,~ I ....."te - I fact that the Union is gene ra 1.1 y not in a position to lead evidence as to why the selection committee chose the incumbent over the unsuccessful grievor. As indicated in Consumers Glas2 the ev,; dent i ary onus w i'1 1 not ßhift to the Employer unti1 ~'ìe Union has made out the prima facie case. F~:lure to meet that. te s t w ill likely lead to the type c..r: ,-esu 1 t r-eached in Solomon. ihe Boar-:: ':iccepts that the proper comparison in this case ìS between tr¿, grievor- and'Mr. Townsend. As noted previously, no evidence was presented as to why Mr. Bamford did not receive the position. In these circumstances, we have no alter-native but to treat Mr. Townsend as the successful candidate. Clearly it was he, and not Mr. Bamford, who commenced work at the Vanier Centre For Women subsequent to the competition. Given these facts, the Board concludes that the enquiry contemplated by article 4.3 should be restricted to these two ( 2 ) gentlemen. In this regard, '\ '\ . ~ -. . - ~ . -,-..,--, -.-" .. "- -....~. -, ". - ~- --" ._-...... .,--~_. .,..-_.-_C'. .L.'. __ .Ch_ .. .,. ".~.. .-_~ ..., ~ -. ~U. ,_,_~_._...~. ... _,.__U C____ -~_ .--.----"- -,- . .. ; " ",e are sa.-::ls<:ie~ ":.:~ a.. t -:n2;"'"9 ~ s .~ './ ~ c: e 0 C e C ~ -f ':] r 9 ~,~ .S ~jO SS~.2C ~ ~ .S:'": that the gr~evor 1 S the more senior emoìoye8 by app rox"; mate i ~; ten " o .....-... . . ~ .- ..- - , 1 '._' .' "'~a; -:::.. The Board has rev ~I ewed, a 11 of the oral evidence presented cn behalf of the Union. Additionally, we have considered the documentation filed on consent, including the answers given "'i n the written examination and the oral inte~v~ew: t:"le con~e('lts ':. .c the applications and resumes; the excerpts from the personnel fiìss; and the notations made 1n the ?erformance ?lanning an¿ ""':,~\/ ~ e\,o. "'" (- - - ' .::'~~~r 3G· ;:c· -; :19 I ':;'~e - ' .3 e~·: ~ ,37' : 2 ,-':: :- ") r- m s . \. '" r ¡- r .\ . ) . =r,: a;"" '.-::' ; :~ that all of the evidence suggests the grievor was relatively equal to Mr. Townsend 1n the context of this competition. ~/'·i ear 2 unable to find sufficient evidence to establish that Mr. Townsend , was demonstrably superior to the ,grievor in terms'of his qualifications and ab,lity to perform the required duties. The Board has been persuaded that both of the candidates c;culd ;J2:rfor~ al! of -'-h..::::, tasks expected of a C,~').Î ::1 t t:18 '/a.n ~ 2!~ 1......1_ Centre For Women. Indeed, both had performed as C.O.2's at the Hetro Toronto West Detention Centre. v-.le note 1n this regard, tha t dl.d í ng the course OT the hearing 1 n respect of the first compet i.t i on, the Emp10yer conceded the grievor could pe~form the duties and responsibi1ities of the position in issue. The P.P.R's do not provide a basis for distinguishing between the grievor and Mr. Townsend. 80th candidates were shown to be performing the critical sk i 11 s at either a satisfactory or 1 2 . h__ . . ~ .. - .-' .--- _....,.... ...'. '~''''''__T' ,~,,"""".__..-.- .-.,. - >. _.~< _ .._ _ '_T' U -, -.. -.. . ~ c.cmmendabì3 "1 eve 1 . 'P'8 atter.dance rp,..,r-. ,...---Î-.-., - ,....=. 3,"--' ¡ìeu::'ra " ~ ~-. ~ _f--IVl i.J.::J a _ - ,;::)....... effect In that they do not favour either of the candìdates in -. :nãteriai sense. The a.<..::;er¡:::~s from the personne; f ì '1 as ,3.r8 G. . ..:)L...J inconclusive as we were not given any information as to the circumstances surrounding certain notations contained therein. The evidence before us demonstrated that Mr. Townsend had the higher level of education. He also appeared to be better ab19 ~c express himself at least in written form. We are unable to state w; ~:- any confidence that this advantage would outweigh the I u. . 3reater - ~ tar-~s of sl4~t.'3.b~ ~ ~ ~/ ~-""":.,... --1..0- l--".- - . - .- j;f'ì8vc:r"S exçer--:erce 1'1 I __: \"..II,-r::; - I....~ . In the final analysis, the Board is satisfled that a prima facie case of relative equality was made out by the Union. In this respect, this matter is distinguishable from the situation as found in Solomon where 'the evidence before the Board was 1 i m i-ted' , .. to the grievor's qualifications. Given the above finding, it was incumbent on the Employer to advance evidence that would explain its selection of "';r. Townsend. This, as noted, was not done 1 n this case as the Employer elected against the calling of evidence. Rather, it relied on the raw scores p~esented in documentary form. This election prevented us from exercising an opportunìty to assess the foundation for the scores. Additionally, we femaln ln the dark as to why the Employer considered Mr. Townsend to be the supe rl or candidate for this job. Even if the scoring were accepted, the Board is inclined to the view that a seven percent 13 , .. -_ ._. _"n-... . .-. ~ '-. . - - -....--"'- --~' .. _r'~_..o...--,. ..,_.._~.·~~_.r_. ~ ._._~ _._...__~._.'_... _ ..........c___.,~~u_...... ..____._....,~__._w.._. ) . '. .,' ~, ( "7?~ ) ga;J , '.L const~tute a situation of relative e~ualitj 7' -:::;. ~... :T11 gn,~ pu !-poses of article 4..3. It 15 unnecessary, hO\l¡eve (' , ·to fin3-;¡y resolve t'lat quest i en. In the absence of reievant evidence -f ,... ...... ,..., . I -....-l·. the - 1 we find that it has failed to satisfy the sh i ft i (~S l::mp,oyer, onus as descri'bed in Consumers Glass. The motion for non-suit must therefore fa i 1 . 'I The Board rejects the Employer's argument that the griev,'J¡'s I greater seniority should riot be decisive 1n this instance. T .....,. ..II our jl.;dgmen-::', '.c other consideraticns are to be paramowr:t, .....r,-...=. 1 : ....' "--- , Employer must support the submission with cogent evidence and I This was argument. not done here. It was simply asserted that we should defer to management's opinion given that the process . . was fai r 'and reasonable. In th~ circumstances here, we find th~s an insufficient reason to deny the grievor the benefit of his greater seniority, . 7'ne 8oard, for a'11 cf the above reasons, awards the I contested position to the gri evor. As this constitutes a lateral I transfer, compensation 1S not in dispute. The Board recognizes that this type of order is somewhat unusual. We elect to grant same, however, on the basis that the successful candidate has vacated the position, We also agree with the Union that a further re-run would not be appropriate. ,<1. -~,---.~- ,,-,-_..-- -_._- ~ ------ ~ '- - _..~-'"""""- ~ _,.,._,__'._m __' _,_,.'___"" __ ~__ - ..___c._____~.._'__ _, ---------- -0"- , ..-",..". - ,- \ - . c I -;-he grïevance ìS therefore aÎ:owed. Dated at Windsor, Ontario this 14th day of February 199 i . I fro. v_ r.J cr:t:b:z.a N.V. Watters, Vice-Chairper~on ."~I~....:-", ~\~. -~"_.~"""';.'c,;,,,,'::' '-- - , J . McManus - f)1t2G¡; , D. Daugf&rty,. . . . ,.. _r _~. ._~,.... ..._._._..._u_ _ ._.._... __.,_.,. ..__.... ...-.-c .._..._....._ .-=._......._____~'.......'.... :_':-'-~~___..-.'. __.......:-.-_-__~_._._~_._.__......._.,.__.~_ ~__--....,.....~_r+.._ _._L.... ---..-..- . ~. -- ... ~~ t , Schedule 'At - Exhibits 1. Grievance of Robert Rankin dated March 22, 1990 2. Job Posting for Competition C1-2017-90 2. Position Specification And Class Allocation Form dated August 1, 1983 in respect of General Duty Officer. ~. Resume of Robert Rankin 5. Letter of February 6, 1990 from N. Harvey, Assistant Superintendent to R. Rankin Ô. L~tter of March 29, 1990 from 8.J. Ross, Area Personnel Administrator-Central Region to R. Rankin 7. Written E~amination of R. Rankin dated February 14, ~39G 3. Cra~ E~am~natiGn of R. Rank~n as assessad by S. ~GSS 9. Oral Examination of R. Rankin as assessed by M. Stewart 10. Oral Examination of R. Rankin as assessed by N. Harvey 1'. Performance Planning and Review of R. Rankin for the period rebruar/ 23,1989 to !=ebruary :3, î390. ~2. Appiication da~ed ~ebruary 5, 1990 and Resume of a. 7ownse~c 13. Written Examination of R. Townsend dated February 14, 1990 1~. Oral Examination of R. Townsend as assessed by ß. Ross 15. Oral Examination. of R. Townsend as assessed by N. Stewart 16. Oral Examination of R. Townsend as assessed by N. Harvey 17. 'Performance Planning and Review of R. Townsend for the period September 30, 1988 to September 30, 1939. 18. 'Written Examination o~ D¡ Bomfo~d dated February.14, 1990 15 Ora1 ~xam1na~ion of D. Bamford as assessed by B. Ross 20 . Oral Exami nat i on of D. Bamford ,as assesse'd by N. Stewart 21. Oral Examination of D. Bamford as assessed by N. Harvey 22. Answer Sheet for Written Examination 23. Summary of 1989 Attendance Figures 24. Excerpts from Personnel Files of R. Rankin, 8. Townsend, anc Smykal 25. Summary of Results on Written Examination 26. Competition Réport Fcrm