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HomeMy WebLinkAbout1991-1695.Sauve.93-05-03 · ON;"AR/O ' ' £MP~.O¥~SDEL,,~ COURONNE CROWN EMP£ OYEES DE L'ONTARIO GRIEVANCE COMMISSION DE SETTLEMENT R =GLEMENT BOARD DES GRIEFS 180 DUNDAS STR££T WEST, SUITE 2100, TORONTO, ONTARID. M'3G IZ,~ TELEPHONE/TE.L~.PHONE: 14~6] ~2~-~ 1~0, RUE DUNDAS OUEST, BUREAU 2 tO0, TORONTO [ONTARIO). USG 1Z8 FACSIMILE/TEL~COPiE .. {4 ~} 326- ~396 1695/91 ~N THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEE8 COLLECTIVE B~LRGAINING ACT Before THE GRIEVANCE SETTLEMENT BETWEEN ' · 'OPSEU (Sau~e) Grievor - and- The Crown in Right of Ontario (Ministry of Transportation) Employer BEFORe_: O. Gray Vice-Chairperson P. Klym Me~ber A. Merritt Member FOR THE D. Wright UNION Counsel Ryder, Whitaker, Wright & chapman Barristers & Solicitors FOR THE B. Christen EMPLOYER Counsel ~. Winkler, Filion & Wak~y - '' Barristers & Solicitor~ , HEARING May 20, 1992 Septen~ber 22, 23, 1992 AWARD In July 1991, Fred Sauve applied for the position of Radio Operator at the District Office of the Ministry of Transportation ir~ New Liskeard. The employer gave the job to Laurelle Hartley. Mr. Sauve grieved this result. His grievance has come before us for arbitration. The result he seeks is "that I be awarded the position of Radio Operator 2, New Liskeard, Ministry of Transportation with full pay, retroactivity and associated damages." Ms. Hartley was given notice of and participated in the hearing of this matter. The parties jointly submitted a brief of documents received or generated by the selection committee assigned by the employer to fill the position in question, including interview notes which the parties agreed were accurate. The chair of that committee testified, as did the grievor. Ms. Hartley was not called to testify for the employer, and chose not to testify on her own behalf. The position in question is classified as "Radio Operator 2." The duties of the position are described this way in the position, specification which was current at the time of the job competition: Under the general supervision of the District Services Supervisor Operates a two- way radio system, providing verbal communication with District mobile units such as patrols, service crews, Drivers and Vehicles and construction staff by: Transmitting, receiving and relaying messages and instructions between various staff, suppliers, maintenance con~acters and others. Receiving reports from mobile units on roa.d conditions, accidents, electrical tr~c devices, floods, storm damages ~r spills; notifying appropriate Ministry staff; contacting emergency serfrices required such as police, Cure, ambulance, Ministry of the Environment or other emergency service. Receiving scheduled winter road and weather condition reports or forecasts from field staff or other sources and transmits data for central assembly and redistribution via facsimile ~ransmitter or remote terminal data entry as appropriate, advising Patrol staff of forecasted winter storm conditions. Responding directly to public inquiries regarding winter road conditions and travel information including radio stations. Preparing audio tapes for public information telephone service on winter road and travel conditions. -2- Maintaining records of daily maintenance activities, emergency calls and staff or contractor call-ins or unusual occurrences or messages; providing summaries of data as required and a log record of all headquarter [sic] base traffic. Monitoring inter-mobile and field base traffic to ensure compliance with Ministry radio usage guidelines and Canadian Radio and Teievision Commission codes, reporting infractions to supervisor. Maintaining a record of all salt and sand usage by all Patrols uSing a Lotus 1-2-3 software package program. Records the receipt and usage of salt by each and reorders as directed by the Patrol Supervisor or alternate. ' Provides typing, data entry, word pro~essing and minor ~ clerical functions as directed by supervisor. Maintaining listings of emergency contacts and telephone numbers. Providing training to temporary staff assigned or hired for 24 hour radio coverage durhqg winter periods. Maintains records of assignment of mobile radio sets, arranges transfer or repair of mobile radio sets through service company. Provides temporary relief service on District switchboard consisting of a multi-line switchboard and also performs duties of receptionist to walk.in. cuStomers. Although nothing particularly turns on it, we are told that the "Radio Operator" job class wi11 in due course be replaced throughout the givil service by a "Communications Officer" job class, in recognition of the broadened range of.duties which have come to be assigned to such positions. Paul Trudel is the Services Supervisor for the Ministry's District Office in New- Liskeard. He is the. immediate supervisor of the position in question. He chaired the selection committee struck to fill it. He testified that the Radio Operator uses custom software called the Road Weather Information System ih connection with the road information function. This software is used to transmit data to and receive data from a provincial data base of current road conditions. T. he Radio Operator enters local road condition information into the database and ~o~tains information from it about conditions in other areas of the province. Mr. Trudel testified that data entry (including data entry into the Road Weather Information System and entry of information about usage of salt and other materials into a .Lotus i-2-3 spreadsheet), typing, word processing and minor clerical functions all together constitute about 10 to 15 percent of the Radio Operator's job. The Radio Operator also relieves the receptionist while she is taking lunch or on breaks, for a total of about one and a half hours per day. Wl~ile relieving the receptionist, however, the Radio Operator remains responsible for performing the functions of her own job~ The employer's job posting described the job and its qualification criteria as follows: THE JOB: ~ To operate a two way radio, transmitting and receiving information, messages and instructions to mobile and stationary units within the boundaries of New Liskeard District. Operates computer and facsimile machines sending and receiving messages concerning road and weather conditions. Prepares taped road report for automatic winter road. reporting service. Occasionally, in the absence of the telephone switchboard operator, operates a telephone switchboard and acts as receptionist. Provides computer and typing services as directed by supervisor. QUALIFICATION CRITERIA: Knowledge of the operation of a two-way radio system and a computer terminal transmitting and receiving information; - clear, concise enunciation and a satisfactory standard of grammar usage; good interpersonal skills and the ability to deal tactfully, courteously and effectively with the public and co-workers; - ability to learn to operate a facsimile machine and automatic multi-trunk telephone switchboard system; . ability to work with a minimum of supervision; - ability to maintain composure, effectiveness and flexibility under pressure; . ability to understand and follow detailed verbal and written ix~tructions; - ability to receive information, compile composite reports and transmit via computer. . typing and/or keyboarding to a basic level. Fifty-five people applied for this position in July 1991. The applications were reviewed ~ ,... by a committee of three: Mr. Trudel, Archie Mc_..I~. y and Lorraine Cook. Mr. McKay is the head of district administration. Ms. Cook is the district accountant. The job posting advised applicants to state in their applications how their knowledge, skills and abilities related to the qualification criteria set out in the job posting. The committee reviewed each application to see whether the applicant claimed to have the qualifications listed in the posting. Those whose applications did not were screene~l out. Eight applicants remained, including the grievor. The grievor is a civilian radio operator with the Ontario Provincial Police. He had been so employed for eighteen years when he applied for the subject job. The first seventeen of those years were spent at the Haileybury O.P.P. detachment, where he rose to the position of Senior Radio Operator,~which was classified as Radio Operator 3. In August 1990, the various dispatching operations of the O.P.P. in northern Ontario were centralized at its District Headquarters in North Bay, and the grievor was transferred to that location. His wife and children remained in Haileybury. The grievor returns there on his days off. New Liskeard is quite a bit closer than North Bay to Haileybury. That is why the grievor was interested in this job. The grievor stated in his application that he had performed the following duties and responsibilities while employed as Senior Radio Dispatcher at the Haileybury detachment: ~' Operate fixed, two-way radio to send and receive messages between fixed stations and mobile units (aircraft, patrol cars, marine units, snow vehicles, hand portable units) regarding driving offences, accidents, outstanding warrants, criminsl occurrences and other emergencies. Answering the telephone, greeting the public, recording occurrences, providing information and taking action such as dispatching patrol cars to scenes of occurrences. - Responding to requests for emergency vehicles, officers and equipment (ambulance, fire, rescue units, etc.). - Mordtoring broadcast activities for compliance with regulations and reporting any infractions to supervisor. - Operating radio equipment links with other police agencies, ministries and the public as required. , .... Operating CPIC database terminal toss,nd and receive messages and information. - Recording transmissions and maintaining various records. Exercising judgement in establishing relative priorities and determining action to be taken in a variety .of situations. Working shifts in instances of unscheduled absences as assigned. Acts as a group leader by training new employees, explaining and demonstrating the purpose and proper use of commurdcations equipment, assessing performance and progress and advising supervisor accordingly. Receiving verbal and written amendments to policies and procedures and updating o~er operators. Monitoring the work, providing advice and guidance,, solving day-to-day problems. · · Recommending changes to existing work methods and procedures. Arranging shift schedules. His application also stated that the duties he was performing at O.P.P. District Headquarters in North Bay were the s~me as he had' performed in the Haileybury detachment, with the addition of facsimile 'machine operation and the use of a computer-assisted dispatch system. He included copies of performance evaluation reports prepared by his supervisors in 1985, 1987 and 1989 with his application. All three reports are quite positive about the grievor's abilities to work under pressure as a radio operator, including his ability to deal with members of the public who may be in crisis situations. The other applicants whose applications survived the initial screening'were Laurelle Hartley, Ann Partanen, Betty Gibson, Mi,chael Adams, Bonita Gate, Richard Ridley, and Diane Guilbeault. At the time of her application, LaurelIe Hartley was a contract employee of the Ministry of the Attorney General working as a dockets clerk in the Provincial Court- in Haileybury. She had considerable secretarial and clerical experience. Her qualifying "radio operator" experience was gained about five years earlier, in a 17 month period during which she worked as a "Clerk Steno Dispatcher" in the Moosonee detachment of the O.P.P. Ann Partanen's most recent employment had been as a clerk at communications company which installed and maintained two-way radio systems. She had earlier been employed by the Ministry of-Natural Resources as an inventory records clerk at its Aviation and Fire Management Centre at the Timmins airport. Her application stated that she had used a two-way radio in the course of that earlier employment. Betty Gibson was a secretary/receptionist at a consulting engineering firm in New Liskeard. Her employment history included eighteen months in the early 1980's as a steno/clerk at the Ministry of Transportation District Office in New Liskeard where, according to her application, she "relieved the switchboard and radio operators." Michael Adams was employed by the New Liskeard police force as a police and fire dispatcher. Bonita Gate was a current employee of the Ministry of Transporta- tion in the New Liskeard District Office. She had been performing the Radio Operator job on a temporary basis in the weeks since the previous incumbent's retirement. Richard' Ridley was a clerk the Canadian Tire store in New Liskeard. His application stated that he had once worked part-time as a.dispatcher for a Kirkland Lake taxi cab company. Diane Guilbeault's most recent employment ha~ been as a ~seasonal replacement for a receptionist and secretary at the office of the Ministry of Northern Development and Mines in New Liskeard. Prior to that she had been employed for approximateiy one year as a radio and switchboard operator at the. Timiskaming hospital in New Liskeard, where she was responsible for radio communication with ambulances. In early August 1991, an employee of the ministry contacted the grievor in connection with his application and asked him to%ome in for a "typing testf When he arrived for the test, he was told that he would be taking it on an electric typewriter rather than a computer keyboard. He was allowed a few minutes to familiarize himself with the typewriter and then given a standard typing test on which he Understood he would be marked for speed and accuracy. When the typing test was over, the grievor was told he would have to take · another test. He was handed a doc~ment which said this: District//14 - New Liskeard COMPETITION MTNR ~4.91-06 Radio Operator- Letter Test Please respond to the following letter by composing in your words. You will be evaluated on your use of grammar and accuracy of message, content and format (typewritten). -7- To: District #14 Radio Operator RE: INSTALLATION OF MOBILE RADIOS Please contact Ontario Northland Communications in writing requesting them to install radio units in vehicles A, B, C, & D. Vehicles A and B will be available in Timmins on August 12 and 13th, respectively. Vehicle C will be available in Gogama on August 15th, and Vehicle D will be at the District Complex on August 16th. We wish to have executive sets installed ,'.m 'vehicles A and C and utility sets installed in Vehicles B and D. Paul Trude! The grievor was surprised by this. He had not previously been told that there would be any test other than a typing test. He thought at first that his response to this second test was being timed, so he prepared a letter as quickly as possible. He was not pleased with the result. The person administering the test told him that he could prepare another letter, He did that. When he gave~his testimony in this matter he was shown the document which Mr. Trudel's committee understood to be his response to this "letter test." He could not say whether that was the first or the second of the doc~ments he prepared. This "letter test" was an invention of the selection committee. Mr, Trudel testified that it is critical that the Radio Operator be ,capable of accurately transfer- ring information, He said that the test was intended to test that ability. Preparing letters to Ontario Northland Communications concerning the installation and removal of radio equipment is one of the tasks regularly performed by the Radio Operator in the spring and fall. Mr. Trudel conceded, however; that the instructions on which the Radio Operator prepares those letters are usually given to her orally, rather than in writing. The committee had decided that it would not interview any candidate whose results on the typing test showed a typing speed of less than twenty words per minute or an error rate of greater than six percent. Of the eight final candidates, only Mr. Ridley failed tha~ requirement. The committee had also decided that no applicant would be interviewed if he failed the letter test. The committee noted that the grievor's letter did not include the address of Ontario Northland Communications. It did not have a caption or a closing which identified the writer. The body of the letter r~ead as follows: Be advised that our office requires the installation of radios in four (4) of our mobile units. Two units require executive sets and the remaining two, utility sets only. If suitable to you, one of the units in need of an executive set can be available for installation in Timmins on August 12 & 13/91. The other can'be in the District Complex building on August 16/91. As for the vehicles requiring utility sets, one can be available at Gogama on August 15/91 with the other available on the above mentioned dates in Timmins. Please advise ff these dates and places would be suitable to you. This letter failed to identify the vehicles as 'A","B',"C" and "D', which the committee regarded as a serious error. It is apparent from the first sentence of the second paragraph that the grievor missed the significance of the word "respectively" in the memorandum of instructions -- he had vehicles A and B each available on both of August 12 and 13, 1991. He also confused vehicles C and D. In the instructions, vehicle C is to receive an.executive set while vehicle D receives a utility set. The grievor's letter had it the other way around. The committee did not mark the candidates' responses to the letter test other than'to assign a "pass" or a "fail". They assigned the grievor a "fail'. The committee also decided that Mr. Adams had failed the letter test. The body of his letter read as follows: We request you have your personnel install radio units in Ministry vehicles "A~,"B","C',"D', on the following dates, August 12, 13, 15 and the 16. -9- Vehicles "A' & "B', will be in Timmi~ on August 12 & 13th., Vehicle ~A" requires an ~xecutive set. And vehicles ~B" requires a utility set. Vehicle "C" will be available in Gogama, on August 15th, this unit requires an executive set. Vehicle "D" will be at the District Complex on August 15th, this~unit requires a utility set. If for some unexpected reason you cannot fulfill fl~ese requirements, listed above, please call as soon as possible and hopefully we can make other arrange~ merits. ~ Mr. Ad_,m's single error of substance appears in the fourth sentence of this letter: the instructions had vehicle "D' at the District Complex on August 16th, not August 15th. The body of Ms. Hartley's letter read as follows: We are presently seeking the installation of radio units in four of our vehicles. As such I am writing to advise you of the dates and places these vehicles will be available. On August 12th and 13th two vehicles requiring both an executive set and a utility set will be available at our Timmins office. Also, in Gogarna on August 15th our vehicle will be available for the installation of an executive set. Lastly, at the District complex in New Liskeard on August 16th the fourth vehicle which requires a utility set will be available. If you have any questions or should these places and dates be unsuitable for your Company please do not hesitate to contact me so proper arrangements can be made. Like Mr. Sauve, Ms. Ha~ley failed to identify the vehicles by the letters "A","B",~C" and ~D'. She also missed the significance of the word "respectively": she had'vehicles A and .B each in Timmins on both August 12 and 13. In addition, she had both an execUtive set and a utility set going into each or'those two vehicles. The committee concluded that Laurelle Hartley, Ann Partanen, Elizabeth Gibson, Bonita Gate and Diane Guilbeault all passed the letter test. They were invited to be interviewed. Mr. Sauve, Mr. Adams and Mr. l{idley each received a letter from Mr. Trudel dated. August 13, 1991, advising him that he had not been selected for an interview. The grievor contacted Mr. Truclel by telephone and told him that he did not understand why he l~ad not been granted an interview. Mr. Trudel responded that he had made a mess of the letter on the letter test. While-not disputing that, the grievor then said something like this to Mr. Trudel: "It ~eems to me that you are disregarding eighteen years of experience and eighteen years of positive performance evaluations. So everything came down to the letter and everything else is disregarded? He says Mr. Trudel replied tl~at it had not come down to the letter, that they were not disputing his ability to do the job, but that "we have to be fair to everybody." After his telephone conversation with Mr. Trudel, the grievor complained to a union representative about his having been denied an interview. . The grievor's testimony about his telephone conversation with Mr. Trudel was not contradicted by Mr. Trudel. If Mr. Trudel's t~stimony is to be believed, however, that the decision not to interview the grievor was based entirely on results of the 'letter test~. Mr. Trudel testified that he had read the grievor's res~_~m_e and the accompanying evaluations. Having read them, he was surprised that the grievor did so poorly on the letter test. Nevertheless, 'he regarded the results of his letter test as proof that the grievor was not capable of accurately transferring information as a radio operator must. To the extent that the grievor's job history and job appraisals suggested · otherwise, he and the other members of the committee ignored tl~at history and those appraisals, preferring to rely on the results of the letter test they had devised. The committee interviewed the five remaining candidates on August 13 and 21, 1991. Following the interviews, the committee decided that Ms. Hartley was the most qualified candidate, They reported that conclusion to Mr. Robertson, the District Engineer. On August 27, 1991, Mr. Robertson advised supervisors that Ms. Hartley would be taking over the duties of "our long-time radio operator, Rose MacDonald~, and asked that they so inform their staff. Ms. Hartley's appointment quickly became public knowledge. Same time later, either Mr. Trudel or the District Engineer received a cai1 from someone in H~man Resources atf the Ministry's Regional Office. According to Mr. Trudel, this person "advised that it would be more fair if we interviewed those three persons who failed one of the tests." As a result, Mr. Trudel says, the committee "in conjunction with the District Engineer" decided that the committee wc~uld interview those three people. At one point in l~is testimony Mr. Trudel said that was clone because "it would appear more fair" if they did so. ~ The committee could not perform the additional interviews before September 3, 1991, the day when Ms. Hartley had been told to report to work. Mr. Trudel contacted Ms. Hartley by telephone and told her that she should not report to work that day. He testified that "I told her we were experiencing problems with the competition process and I would get back to her in about a week's time." He did not tell her that she did not have the job or that other candidates were being interviewed for it. He says that his intent in speaking to Ms. Hartley was "to give the impression that the process was not complete." In late August, after the hiring of Ms. Hartley been announced, someone from {he personnel office contacted the grievor and asked if he could come in for an. interview. The caller also asked whether the grievor could provide a copy of his most recent performance evaluation. The grievor obtained a copy of his most recent performance evaluation and caused it to be se~n~.~, to the District Office by facsimile transmission. That performance appraisal, covering a period ending in August 1991, was as positive as the earlier ones had been. It was in the committee members' hands when they interviewed him. The committee interviewed the grievor, Mr. Adams and Mr. Ridley on September 4, 1991. Each applicant was asked these questions, which had been asked of the five candidates interviewed in August: 1. Describe the procedure you would use to place a call from a radio base unit to a field mobile unit. 2. Name, and briefly describe the software packages you are familiar with. 3. What would you consider to be the ,~dvantagesfDisadvantages of' using a radio system as opposed to a telephone. 4. You receive a radio call from an irate employee in the field claiming you have mishandled a message. Describe how you would handle this situation. 5. At times you will be required to cover the receptior~ desk, switchboard and radio by yourself. In such a circumstance you end up with three incoming calls on the radio, two incoming c~11~ on the telephone and a customer standing at the reception desk. Describe how you would deal with this complex problem. 6. How would you ensure that you have understood a message and that you have passed it on correctly? ¢ After the additional three interviews were completed in September, the committee performed a "reference check" on each of the eight applicants by contacting his or her supervisor or a former supervisor and asking these questions: 1. Was [the applicant] ever required to work without supervision, and if so, were there any problems? 2. How did [the applicant] react in job related pressure situations? 3. Is [the applicant] able to deal tactfully and courteously with the public and co-workers? ~ "- 4. How did you find [~he applicant]'s atte~dance and punctuality during his/her employment with you. 5. Did you fred [the applicant]'s overall performance.to be satisfactory? 6. Is there any reason that [the applicant] might not be suitable for the demanding position of radio operator? . The committee decided to assign each of the eight candidates a mark made up of the following components: Typing - 10 percent Letter test - 25 percent Interview - 50 percent Reference check - 15 percent ~ Ms. Hartley had scored 59 words per minute on the typing test. The committee gave her 10 out of 10 for typing. Applicants who scored 47 and 38 words per minute received 9 and 8, respectively. The grievor was given a 6 for having .typed 28 words per minute. Mr. Ridley was the slowest typist, at 13 words per minute. He got a score of 2 out of 10. Mr. Trudel testified that the 25 percent assigned for the letter test was further broken down into components for accuracy, (16 ~if the 25), format (4 of the 25) and grammar and content (5 of the 25). Although he could not identify them, Mr. Trudel said that there were 16 pieces of information which each letter had to 'convey accurately, and that the mark related to the w]mber of pieces of information accurately conveyed by the letter. Mr. Sauve was assigned 6 out of 16 for accuracy. Ms. Hartley was assigned 12 out of 16. By comparison, Mr. Adams (who had originally been assessed as having failed this test) got 15 out of 16 for accuracy. Mr. Sauve got · 2 out of 4 for format, pres~mably because his letter did not have a caption or a closing that identified the writer. Ms. Hartley got 4 out of 4 for format. Mr. Sauve was assigned 2 out of 5 for grammar and content. Ms. Hartley got 5 out of 5. Mr. Trudel could not explain how these marks for grammar and content were arrived at, nor what it was about Ms. Hartley's grammar and content that so eclipsed the grievor's. He also could not explain how the committee's marking of Ms. Hartley's effort had taken into account her error in stating that two of the vehicles required both an executive set and a utility set and the other errors noted earlier. No other member of the committee testified. The committee members had not assigned numerical scores to the interview results at the end of the first five interviews in August. Instead, Mr. Trudel says, they had entered "narrative assessment model In this narrative assessment mode, the members of the committee reached consensus on a brief written assessment of each applicant's performance during her interview. They then Yanked the candidates according to how favourable these assessments were. The committee still had the sheet on which they had recorded those assessments. They arrived at a consensus assessment for each of the three interviews conducted in September, .and added these to their sheet. They then assigned marks to the eight interviews, based on these consensus assessments. The committee members thought Ms. Hartley's was the best interview, so they assigned it a perfect 50. Mr. Sauve's interview was assigned a score of 40 out of 50. Ann Partanen was assigned a 44; the other applicants all received a lower interview score than the grievor. During cross exs_m_ination, union counsel asked Mr. Trudei a number questions about how the grievor's responses during his interview were inferior to the responses Ms. Hartley gave during hers. The question on which Mr. Trudel noted the · greatest difference was the one about "software packages." It appears from committee members' notes of their earlier interview of Ms. Hartley that in answering the computer packages question she referred to havink used an unidentified program when she worked for the telephone company, the CPIC system when she worked for the O.P.P. in Moosonee, a database system used in the court system, and WordPerfect, a commonly used word processing progrsm. Her answer was rated as 'acceptable". With the exception of WordPerfect, none of these programs is used by an employee in the subject position. Mr. Trudel acknowledged that the ques'tion asked went beyond knowledge of software which might actually be used in the position in question. He said the object of the question was to identify how many different software packages an applicant claimed to have learned. He stated that this information was relevant on the theory that the more software packages someone knows the more able they are to learn another one. Mr. Trudel's interview notes show that the grievor's answer to the computer packages question made reference to two comp(~ter systems with which he works on a daily basis. One is the CPIC (Canadian Police Information C~ntre) system which he accesses through a dedicated terminal in the console at which he works. The CPIC system is a combination electronic mail and data base entry and retrieval system by which police forces communicate with one another and keep track of wanted persons, escapees, stolen property, dental records, missing persons, outstanding charges and so on. His duties include entering information into the system and retrieving information from it. The other system Mr. Sauve referred to is a computer aided dispatch system, which he operates from another terminal in his console. This computer system is used to send 'and monitor digital radio signals to and from police vehicles. The grievor uses it both in addition to and in lieu of the more traditional radio transmission of voice messages. It is apparent from the evidence, and should have been apparent to the- committee members, that the CPIC system and the computer assisted dispatch system both involve the use of comPuter hardware and custom computer software. The use of · each would involve the mastery of a particular user interface. From his notes oi' the grievor's interview, it appears that Mr. Trudel did not recognize that the grievor was .. describing software with which he was familia~ when he described the computer assisted dispatch system. His notes about the grievor's answer to this question say this: Could only describe the CPIC system. Did not name or describe any other computer software. Talked at length about the computerized radio system. I asked him if that's what he was describing and he said yes. (barely acceptable) Beside her notes of the grievor's references to the computer assisted dispatch system, another member ~f the committee wrote "radio system - irrelevant to question". We do not propose to refer to all of Mr. Trudet's evidence about the answers the grievor and Ms. Hartley gave to the other questions asked of them during their interviews. It is instructive, however, to consider Mr. Trudel's testimony concerning their answers to the question about dealing ~with a complaint by an irate employee. In his notes about the grievor's answer to that question, Mr. Trudel wrote "failed to establish procedure to prevent recurrence." The same criticism does not appear in his notes about Ms. Hartley's answer to that question. Counsel for the union asked Mr. Trudel where in his notes of Ms. Hartley's response he could fred mention of a procedure to prevent recurrence. Mr. Trudel pointed to the words "discuss at office later" and said "she probably expounded upon that at that time." He could not say what her exposition had been. C~unsel for the union then drew Mr. Trudel's attention to another interviewer's notes of the grievor's answer, in which that interviewer noted his having said "make sure it didn't happen againf Counsel for the union invited Mr. Trudel to agree that Mr. Sauve had also indicated concern with preventing a recurrence. Mr. Trudel's disagreed, saying that the grievor "may have" indicated a "concern" but "failed to establish a procedure." The committee gave each applicant a full 15 percent for the results of his or her "referer~ce check", unless the supervisor questioned gave a apparently equivocal · answer to any of the questions asked. That 'happened in two cases. The applicants affected were given 12 percent. The grievor and Ms. Hartley each received 15 percent. In the result, Ms. Hartley received a score, of 96 p~cent, while the grievor's score was only 71 percent. Four of the six Other applicants-~'~d scores higher than the grievor's. During cross~xamination it was put to Mr. Trudel that the committee members would have been inclined to favour Ms. Hartley in their second set of selection deliberations because they had recommended her hiring after the first deliberations and, as a result of that recommendation, her hiring had been publicly announced. Mr. - 17 - Trudel would not acknowledge that it was in any way easier for the committee if its initial result was confirmed after the additional interviews. He said that announcing a different result would not have been any worse than saying "now we'll interview three more." He also denied that the committee's having given the three additional interviewees consideration smounted to considering people the committee had already decided were not qualified for the job. Mr. Trudel stated that the committee had ~iot said that the three were not qualified, but ha~d only said that they did not pass a test which qualified them for an interview. With reference to the marking scheme used by the committee, Mr. Trudel was asked whether the qualifications and abilities assessed by means of the interviews accounted for only half of the job while those addressed by the letter test covered one · quarter of the job. Mr. Trudel said that the committee had not rationalized it thafi way. He said the committee thought that 25 per cent would be a fair value for the "ability to demonstrate" transfer of information. The interview was assigned 50 per cent because the committee did not want the interview to dominate, so that a person's interview skills alone would not "get you in." He said that the com_mittee wanted applicants to demonstrate both in writing and in an interview that they could do the job -- that they could type, transfer information correctly and communicate effectively orally and in writing. Was there a breach of the collective agreement? Article 4.3 of the parties' collective agreement provides that: 4.3 In filling a vacancy, the Employer shah give primary consideration to qualifications and ability to perform ~e required duties. Where qualifications and ability are relat/vely equal, length of continuous service shah be a consideration. Although the article does not expressly say that seniority governs when qualifications and ability are relatively equal, the Board has construed it to mean that "seniority shall govern unless some overriding consideration suggests some other decision~: - 18- Doherty, 43/76 (Beatty); Bullen, 113/82 (Samuels). With reference to the "relatively equal" test, the Board has held that the appointment of the junior of two qualified applicants is only appropriate if the qualifications and abilities of the appointee exceed those of the senior applicant by a substantial and demonstrable margin. There is no suggestion that there was any "overriding consideration" in play in this case. If the grievor had the qualifications and ability to perform the required duties of the job, he was entitled to it unless the qualifications and ability of some other candidate were superior by a substantial and demonstrable margin. The language of Article 4.3 makes it clear that the qualifications and abilities which are considered and compared must be those needed to perform the required duties of the job. The process by which the employer must ascertain, weigh and compare qualifications and abilities in order to comply with Article 4.3 has been the subject of n~merous Board decisions. This passage from the decision in MacLellan and Degrandis, 506/81 (Somuels) has oi'cen been quoted: The jurisprudence of this Board has established various criteria by which to judge a selection process: 1. Candidates must be evaluated on all the relevant qualifications for the job as set out in the Position Specification. 2. The various methods used to assess the candidates should address these relevant qualifications insofar as is possible, For example, interview questions and evaluation forms should cover all the quslifications. 3. Irrelevant factors should not be considered. 4. All the members of a selection committee should review the personnel files of all the applicants. 5. The applicants' supervisors should be ~ked for their evaluations of the applicants. 6. Information should be accumulated in a systematic way concerning all the applicants. See Remark, 149/77; Quinn, 9/78; Hoffman, 22/79; ElLsworth et al., 361/80; and Cross, 339/81. - 19- The Board has repeatedly observed that qualifications and abilities should not be assessed solely on'the basis of an applicant's performance during the selection process. Past job performance, particularly of similar job functions, must also be considered and given appropriate weight. The Board has found Article 4.3 contravened when the selection committee relied exclusively or unduly on interview results and gave too little or no weight to past performance in assessing qualifications and ability: Chrislmas and Chaput, 907/86 (Gandz); Skag~en and GIernnitz, 1934/87 (Springate); Poo/e, 2508/87 (Samuels); Hall~Powers, 716/89 (Gorsky). It is not enough to treat past related experience as a basis for pre-interview screening and ignore it thereafter -- past related experience must be given weight in assessing the relative qualifications and abilities of the final candidates: Nixon, 2418/87 (Fisher); MclIwa$n, 628/89 (Verity). Properly prepared and conducted tests may be used as part of the selection process, subject to the limitation that applies to interviews: the results of a test should not be relied upon to the exclusion of other evidence of the qualifications and abilities which the test is designed to measure. Moreover, the selection committee must be alert to the possibility that a test which has not been validated, particularly a test which is designed by persons who have no expertise in test design, might not reliably measure what it is intended or expected to measure. When the test purports to measure a qualification or ability which evaluations of past performance will also have- measured, the evaluations must be given appropriate weight even (and, perhaps, especially) when the test results and evaluations conflict: see Hall~Powers, 716/89 (Gorsky) at page 18. Most job specifications list several distinct j~,~b activities. Some of those activities may-form a greater part of the job than others,' and each activity may require a distinct qualification or ability. As part of its selection process, the employer may establish a reasonable minimum for each required qualification or ability, and may refuse to consider further those applicants whose applications do not claim that they have, and are not known to the employer to have, (or are found not to have) one of these essential minimum qualifications or abilities: Moses, 715/89 (Barrett); Sequeira and Lueck, 768/87 (Gandz); Bent, 0031/88 (Knopf). Once consideration has narrowed to comparison of applicants who all have the minimum required qualifications and abilities, the weight which the employer gives to the applicants' strengths in~ each relevant kind of qualification or ability should correspond at least roughly with the degree to which the activities of the job require that qualification or ability: Lall, 1726/87 (Fisher); Loconte, 2573/87 (Fraser). The union argues that there were a n~mber of defects ih the way the selection process here was conceived and carried out. It criticises the scoring system adopted, the actual scoring under that system and the failure to consider and give weight to previous job experience and performance appraisals. It also argues that.the committee was unlikely to have the will or ability to act objectively in September 1991 after having already made a determination in one candidate's favour in August. 'The employer argues that the committee acted properly throughout and, indeed, that it was proper for it to have denied the grievor an interview. We will deal first with the proposition that the committee could properly have denied the grievor an interview, as it initially did. Employer counsel relied on the awards in Moses, 715/89 (Barrett), Sequeira and Lueck, 768/87 (Gandz) and Bent, 0031/88 (Knopf) in support of that proposition. The awards in Moses and Sequeira and Lueck support the proposition that the employer need not interview a candidate who does not claim to. have one of the qualifications or abilities which the employer has designated as an essential "must have." The award in Bent appears to say that the employer need not interview an applicant who d~,es have all the minimum essential qualifications and abilities, if it is apparent from the applications that overall he or she is demonstrably less qualified and able than other applicants. Together, these awards support the proposition that the employer need not interview someone who would not be "in the running" even if everything claimed in his or her job application were true. -2! - As counsel for the union points out, the "screening out" process considered in the awards to wl~ieh employer counsel referred is analogous to the process by which the eight final candidates were selected from among the 55 initial applicants. None of the awards refers to the use of pre-interview test results as the basis of a second screening. There is no reason why a test could not be used as part of a second, pre- interview screening, however. If the results of the test., when taken together with all of the other information which is or ought to be at hand, reliably demonstrate that an applicant lacks some essential minimum qualification or ability, then that applicant is in no better position than if he or she had not claimed to have the requisite skill. In principle, a test or tests might also be used in the elimination from consideration of an applicant with all of the requisite minimum qualifications and abilities, if the test results support the conclusion that the applicant, while capable of performing the job, is demonstrably less qualified and able than other applicants. To play a sign~cant role in that regard, however, the test or tests would have to canvass the full range of qualifications and abilities required to do the job. Ordinarily, that canvassing is done by means of an interview, which is just a particular form of test. Whether or not the test takes the form of an interview, however, it is inappropriate to use it as the sole basis for ranking qualified candidates to the exclusion of o~ther available information about the extent of the candidates' qualifications and abilities. As we understand it, the employer's arg?~ment is to the effect that the letter test measured the presence or absence of an essential minimum ability, just as the typing test did. While we accept the obvious premise that a radio operator must accurately transfer information both orally and in writing in the course of this job, we are not persuaded that the letter test reliably measured the presence or absence of some essential minimum ability to do this. The committee obviously recognized that any minimum standard for accuracy would involve some acceptable frequency of error, since it judged Ms. Hartley to have "passed" despite the several inaccuracies in her response. Yet the committee never defined an acceptable frequency of error. It did not adequately consider what would - 22 - or would not constitute an error. This is evident from the fact that it first failed Mr. Adams while passing Ms. Hartiey, then later awarded him a 'higher mark than hers. The committee had difficulty identifying and counting errors in an objective and meaningful'way. After the committee had purportedly adopted a marking scheme, it gave Ms. Hartley twice as many marks for accuracy as it gave the grievor. We have already identified what appear to us to be inaccuracies, in each of the two letters. Ms. Hartley's letter does not suffer from the defect.ts' o£ form noted in the grievor's letter, but it appears to us that the body of her letter contains nearl~ as many inaccuracies as the grievor's. Mr. Trudel was unable to explain what things were and were not errors in a way which explained the difference in the marks Ms. Hartley and the grievor were given. When the person who administered a test cannot adequately explain how it was scored, that alone puts the reliability of the test scores in doubt. Whatever number of errors may have been counted in any response to this test, ' the committee seems not to have considered whether the error rate on a single exercise involving 16 pieces of information was likely to be reliably predictive of a candidate's error rate on the job. No,ne would test typing ability on the basis of a text 16 characters long. A typical five minute typing test gives the subject hundreds of opportunities to be correct or incorrect. It seems to us that this letter test could not have been more reliable as a predictor of a candidate's accuracy rate than a five- second typing test would be as a predictor of a candidate's typing speed. Apart from what logic might have told them, the committee members had clear evidence that their letter test was unreliable. The results of the test purportedly demonstrated that the grievor was devoid of thee minimum ability to accurately transfer information which any radio operator needs in order to properly perform that sort of job. In fact, the grievor had performed a radio operator job competently, even commendably, for 18 years. The incongruity between that reality and the test's prediction cast doubt on the reliability of the test, not on the grievor's qualifications. - 23 - Apart altogether from whether the test could support a judgment that the grievor lacked some essential minimum qualification, two things Mr. Trudel has said cast doubt on the employer's claim that the grievor was or could have been denied an interview because he lacked a minimum qualification. In August 1991, Mr. Trudel told the grievor that the committee had no doubt of the grievor's ability to do the job. And in testimony before us, he said that in its initial refusal to interview the grievor and Messrs. Adams and Ridley, the committee .had not said that the three were not qualified but had only said that they did not pass a test which qualified them for an interview. It is not apparent how the committee members thought they could make passing their letter test a prerequisite to further consideration if they did not regard those who failed it as unqualified. .. Whatever the committee members may have thought, however, we are satisfied that the results of the letter test did not justify eliminating the grievor from consideration for the position in question. The committee had not consulted the grievor's supervisor and had no reason (other than~the test results) to suppose that the positive job evaluations which accompanied his application were exaggerated or unreliable. The test results were not a sufficient basis for ignoring either those evaluations or the grievor's job history. Considered in the context of that job history and those job evaluations, and in light of the considerations we have already; identified, the test results did not support a conclusion that the grievor lacked some ~ssential minim~m qualification or ability required in the subject job. Equally, in that context the test results could not have supported a conclusion that the grievor's qualifications and abilities were so eclipsed by those of other candidates that he was clearly out of the running. Accordingly, we reject the argument that the employer acted properly when it at first eliminated the grievor from consideration without granting him an interview. The union argues that the very committee which had eliminated the grievor and others from consideration was called upon to reopen and, in effect, re-run the competition and give consideration to the candidates it had earlier eliminated. In these - 24 - circumstances, it submits, the committee had a bias or there was an appearance of bias which should Vitiate their ultimate conclusion. It refers to Esmail, 1186/87 (Dissana- yake) in support of this submission. The. employer argues that the actions of an employer in judging the qualifica- tions and abilities of employees are not to be judgea by the same siandard as quasi- judicial tribunals, citing the passage from Re' University of British Columbia and C.U.P.E., LOcal 116 (1982), 5 L.A.C. (3d) 69 (Munroe) at pp. 73~ which is quoted in Re Board of School Trustees of School District No. 68 (Nanaimo) and C. U.P.E., Local 606 (1985), 19 L,A.C. (3d) 176 (Germaine) 176 at pp. 184-5. While it acknowledges that actual bias on the part of the decision maker would be a relevant consideration, the employer argues that the existence of circumstances which might create an apprehension of bias is not a basis for vitiating a selection decision. The passage from Re University of British Columbia and C.U.P.E., Local 116, supra, on which the employer relies is instructiv~i It has been held that judgments reached by employers purs~_~__~.ut to provisions such as art. 10.02 must be unbiased: see, for example, Re U.A.W. and Kysor of Ridgetown Ltd. (1967), 18 L.A.C. 381 (Weiler) at p. 389. What does that mean? It cannot have the same meanh~g in the h~dustrial setting as it does in the adjudicative setting. Judges and arbitrators are required to come to a particular dispute unencumbered by prior knowledge of the circumstances or of the strengths and weaknesses of the parties. If that test is not met, an argument of legal bias arises. But that degree of purity is impossible of re~li~.ation in the process of making a managerial judgment as to who should be awarded a particular · promotion. Managers know their employees. They know something about theLr training, talents, work habits, leadership attributes etc. They are not thereby disqualified from making judgments affecting the careers of their employees. What is required is honest reflection, an honest approval within the parameters of the ~ ~-~ ~ · collective agreement. That is more than an a~o~dance of complete dishonesty. It implies as well a genuine preparedness to be influenced and persuaded by the facts as they are revealed during the selection process -- even though those facts may not buttress any preconceived notions. (emphasis added) The award in Esmail dealt with a job selection process in which two of the three selection committee members had previously been instructed to select ~the best - 25 - possible personnel" for some training. This training was highly relevant to the job for which the selection in dispute was later made. The persons who had earlier been selected for that training were competing for that job against others who had not been selected. Referring to the two selection 'committee members, the Board said (at page 11 of the award)that ... having already represented to the head office ~at Ms. Jelley and Ma. ' Shepheard were the best possible persormel, i't would have been impossible for them to have overruled themselves by selecting someone 0ike the grievor) who had not received the OASYS training, for the SAC positions. 'They would have had no choice but to appoint those who had received the OASYS training no matter what happened in the interview process, because to do otherwise would have made them look very foolish in the eyes of their superiors. The Board said that by electing to sit on the committee, the-two committee members in question "created an apprehension of bias, in the sense of being under severe pressure to select employees who had received the training". It also found that the committee had treated the interviews as a judging of a performance, rather than as a means of ascertaining the candidates' qualifications and abilities. The Board observed (at page 15 of its award) that it had been wrong of the committee to judge the candidates' abilities to communicate solely on performance during the interview: The Board does recognize that the SAC job requires good communication skills. But so does the assessment clerk job which the grievor had performed without complaint for years. The evidence is that she had good performance appraisals and there is no indication of any problems in communication. Even if the grievor was less than perfectly articulate during her interview that is not a determinative indication of a lack of communication skills. The panel had much more reliable evidence in the employee files and appraisals if the grievor had any problems communicating effectively. It is not appropriate to judge an employee's communi- cation (or for that matter any other) skills based solely on the performance at a brief interview, when much more reliable evidence is readily available elsewhere. At pages 19 and 20 of the award in Esrnail, the Board returned to the influence of the committee members' prior decision on their ability to act objectively: We have concluded that the selection panel relied solely on the interview marks in selecting the winners. This by itself is reason to strike down the competition. See Re Poole, 2508/87 (Samuels) and Re Clivoerton, 2554/87 (Watters). Also, a job interview under art/cie 4.3 must not be approached as a means of judging a - 26 - performance. The purpose is not to determine who can better handle an interview. It is a process of information gathering for the purpose o/' ascertaining the true abilities and qualifications of the candidates. Once again we emphasize that we are not satisfied that the panel was guilty of bad faith as alleged by the Union in the sense of deliberately orchestrating the success of Ms.' Jelley. However, they made the critical mistake of sitting on the interview panel after ~heir involvement in the selection for OASYS training. By so doing, they fettered their ability to objectively seek out the qualifications and abilities of the candidates. As the Board has attempted to illustrate, this shows in the manner the panellists viewed and evaluated the various answers. Perhaps sub.consciously, their judgement was coloured in favour of MS. Jelley. This transited easily into generous marking for Ms. Jelley partAcularly because there were few restrictions on the marking. There were no agreed upon answers, no breakdown of marks to be allocated to sub-parts of questions and a number of questions called for very subjective answers. The end result is that the scores allocated at the interviews are unreliable as ind/cative of the true q~mlifications and abilities of the respective candidates. It does not appear that the Board in Esmail treated the "apprehension of bias" to which it had referred as an independent basis for a finding that Article 4.3 of the collective agreement had been breached. As it noted, there were sufficient grounds for such a finding without reference to that feature of the case. In the end, the Board was not content merely to find that the committee ~ members would have been under pressure to conf'~rm their earlier judgment. It considered whether, having regard to its conduct, the committee appeared to have succumbed to such pressure in a way which vitiated their decision. In essence, it was assessing whether there was "actual bias~ of the sort described in the University of British Columbia award cited by the employer. In this case, by the time the committee members interviewed the grievor and decided on and applied their marking scheme, they had already committed themselves to the proposition that Ms. Hartley was the most qualified candidate for the job. The District Engineer had acted on their recommerrdzt~on to that effect in a very public way. Anyone in the position of those committee members would have wanted his or her earlier decision to be confirmed as correct, And they were in a position to confirm it. It is difficult to believe Mr. Trudel's claim that he saw no advantage to arriving at that result after the decision had been made to interview the other three candidates, particularly in light of his having avoided telling Ms. Hartley that the'decision to hire - 27 - her had been or might be reversed. That the circumstances placed Mr. Trudel and the committee meml~ers under pressure to confirm their earlier decision cannot be doubted. If Mr. Trudel was truly not conscious of that pressure, then it was operating at a subconscious level at which he could not have guarded against or compensated for it. There are several respects in which th.e. selection committee's selection process was inadequate or inappropriate. The committee did not properly take past related experience into account after the screening stage, when assessing and ranking candidates who all appeared to have the requisite minimum qualifications and abilities. Past related experience may have assisted candidates in answering questions during the interview, and may have played some part in the answers supervisors gave during the reference check. But after the screening stage, past related experience was given no attention and no weight of its own as independent evidence of qualifications and ability, as it should have been, The committee continued to give undue weight to the results of its letter test. We do not suggest that the committee overvalued the ability that they thought the test measured. There can be no doubt that the ability to accurately convey informatiori is important in a radio operator's job. As we have already said, however, both logic and the evidence show that the committee's letter test was not a reliable measure of. that ability. The committee's application to the test of a numerical scoring scheme did not enhance its reliability. Past performance as a radio operator or in a similar role was a much more reliable measure of this abilif¥. The weight which the committee assigned to the letter test results in the. erroneous belief that they adequately measured this ability only serves to emphasize the seriousness of the committee's failure to give past related experience and performance substantial weight. Then there is the committee's scoring of the interviews. Although the committee had prepared notes for each interview question of the points which a candidate's answer to the question should cover, it had no structured marking scheme. It did not divide the total possibIe marks among the six questions or subdivide each question's marks among the points it thought a satisfactory answer should include. Its impressionistic approach to marking left the committee members particularly susceptible to the pressure which naturally arose from their having earlier jurtged Ms. Hartley to be the most qualified of the candidates. From the evidence recited earlier concerning the committee's reaction to answers to the second and fourth' interview questions, we conclude that the committee members were tougher on the grievor than they were or had been on Ms. Hartley. Evidence of this can also be seen in their assignment of marks to the letter test responses. In the result, we are persuaded that the scores assigned by the committee to the interviews were not and are not reliable measures of the relative qualifications and abilities of the grievor'and Ms. Hartley. The union argued that the interview question about familiarity with computer packages did not measure a relevant ability, and that there were several other identifiable defects in the way the committee went about its task. We do not find it necessary to address these other arg~ments at this point. The defects we have already noted are a sufficient basis for a finding that the employer breached Article 4.3 of the collective agreement by failing to properly consider the qualifications and ability of the grievor. The Board has responded to breaches of Article 4.3 in a variety of ways. In Skagen and Glernnitz, 1934/87 (Springate), the grievances of two unsuccessful candidates for a single position were heard together. The remedy sought was that the job competition be rerun. The selection committee had not examined or considered either the candidates' personnel files or their supervisors' appraisals. The employer argued that this did not affect the result. The Board said it was "not so certain" of - 29 - this. It directed that the competition be rerun without deciding whether the result would have been ~iifferent: It' is quite possible that had the selection committee considered supervisors' evaluations as well as candidates' personnel files, the result of' the competition may have been the same. There is sufficient doubt as to whether this would have been the case, however, that we are satisfied that the selection of Ms. Boston should be set aside, Accordingly, we direct that the comPetition for Deputy Sheriff be rerun. In D. Bent, 1733/86 (Fisher), a decision released three months later, another panel of the Board went beyond asking whether the defects it found might have affected the result: ... The Union takes the position that once a defect has been foundl a re-run should automatically be ordered unless the Board is satisfied that even with the corrected defects the parties would not be found to be relatively equal. However, · the employer takes the position that the onus is squarely upon the Union's shoulder Is/c] to show that if the defects had not occurred then the grievor would be found to be relatively equal. A review of the case law, in particular, Sedore 250/83, a decision of Vice Chairperson Delisle gives some insight huto the process. In that decision the following quote is found, ~' In Marek 414/83 (Samuels) this Board ordered a new selection because they were persuaded by the grievor that he could very likely demonstrate relative equality if a proper selection procedure was undertaken. It is agaimt that background that we now turn to examine the selection process under attack. At page six of the decision, the following quote is found The grievor has failed to persuade us that he was relatively equal to the second applicant or that he might be able to persuade a new panel of the same. From this it seems clear that the onus is on the Union to establish not only that the defects existed but that had the defects not ~ccurred, that the grievor would have got the position. Although it is not articulated in the Delisle decision, it seems appropriate that the onus should be on a balance of probabilities. In other words, if the Union is able to show that there were procedural defects in the selection process then they must show on the balance of probabilities that had those defects not occurred, the grievor would have been found relatively equal. The union argues that the analysis in this passage ignores the last few words' of the second quote from the award on which it purports to rely. The union submits - 30 - that to be entitled to a re-run, which it asks for in the alternative to an awhrd of the position to the grievor, it should not be required to prove on a balance of probabilities that the grievor would succeed in a properly conducted competition, but only that he might succeed. The employer says, however, that the D. Bent award correctly describes what the union must establish in this case. It argues that before there can be any remedy for a defective selection process, the grievor must show that the grievor would have been the successful candidate if the selection process had been properly conducted. ~ If the union proves what the employer says it must prove before the grievor can have any remedy -- if it proves that the grievor would have been the successful candidate if the selection had been conducted in accordance with the requirements .of the collective agreement -- then one is bound to ask why the remedy for which he thus qualifies should not be a direction that he be treated as the successful' candidate and given the job in question. In Zuibryck£ 100/76 (Pritchard), the Board held that it had the power to award a grievor the job in question as a remedy for breach of an earlier version of Article 4.3, even when there was more than one unsuccessful candidate. The employer applied for judicial review of that decision, arguing that the Board's remedial jurisdiction Wa~ limited to directing that a competition be rerun. The Ontario Divisional Court rejected that argument: Regina v. Ontario Public Service Employees' Union et al. (1982), 35 0.R. (2d) 670. At that time, the collective agreement provision in question read as follows: In filling a vacancy, the Employer sh~J~.give primary consideration to qualifications and ability to perform the required duties. Where, in the opinion of the employer, qualifications and ability are relatively equal, length of continuous service shall be a consideration. (emphasis added) There is no longer any reference to the opinion of the employer in Article 4.3. There can be no question that the Board has the power to direct that a grievor be appointed to a job as a remedy for breach of Article 4.3. -31 - The object of any compensatory remedy is to restore the injured party to the position he or sh~ would have been in had the breach not occurred. Accordingly, it would be illogical and inappropriate for the Board to remedy a breach of Article 4.3 by awarding the job in question to the grievor, unless it is persuaded that the grievor would have been the successful candidate if the qualifications and abilities of all candidates had been properly assessed. Obviously, that.requires the Board to make its own assessment of the candidates' qualifications and abilities when the employer's assessment has been show to be defective. In Alam ,0735/85 (Brandt) at page 12, the Board observed that The Board has frequently expressed a reluctance to exercise its jurisdiction to · award the job to a grievor directly rather than remit the matter to the parties for a second competition. Generally, the reason given is that the flawed selection procedure is such as to prevent the Board from having before it sufficient information to permit it to make a judgment as between the candidates. (Fazzolari [1244/84]; Leslie [126/79]; McNamara [272/81]; Hoffman [22/70]; Chert and Talon [70/79}; Quinn [9/78]). If the alleged defect in a selection process is failure by the selection committee to gather potentially relevant information about candidates' qualifications and abilities, and the only evidence the Board has of the candidates' qualifications and abilities is what the selection committee had before it, then there is a seeming contradiction if- the Board proceeds to determine the likely outcome of a properly conducted selection process. Of course, there is no reason why ,the evidence before the Board on the question of qualifications and abilities should be limited to what the selection committee had before it. Indeed, after D. Bent, supra, an unsuccessful applicant who complains that a selection committee failed to gather appropriate sorts of information .... can be expected to put before the Board any ofth~'missing information which supports his or her claim to the job. The Employer urged on us the following proposition, which appears at page 31 ' of the award in Loconte: -32 - In Sullivan 2411/87, the board reviewed the leading cases including Atarn 135/85, where the matter was remitted back to the parties for a second competi- tion to be conducted in accordance with a number of conditions, and Parent 555/82, 556/82, where the board itself made the determination as the process provided enough evidence for the board itself to decide, and there had been extensive delay. In considering these matters, the board in Sullivan noted at'p.7: Ffrst, there is a presumption that the Board will remit a competition back to the Employer where no prior determination of relative equality has been made. The underlying principle is that the Employer is. primarily in the business of running such competitions, among other things, and that it accordingly has a competence to make such determinations to which a Board should defer unless there are reasons for the Board to assume that role. It is noteworthy that the Sullivan award added the following qualifications to the statement quoted from it in Loconte: However, the Board may assume that role where a different panel of the Board, rather than the Employer, has already made such a determination, and there is sufficient evidence of bad faith to cast a shadow on the possibility of a fair competition if ordered (Zubryckz~. ~' The Board may also assume the role where the process, including a second competition, provides enough evidence for the Board itself to make the final determination, and where there has been extensive delay (Parent). Finally, where a prima facie case of relative equality is established by the Union, in the absence of any evidence from the Employer, the Board may fi_nd that sufficient to award the grievor the job even in the absence of any prior determina- tion (Newburn and Phillips). In Alum, the Board noted that there had been a number of decisions in which the Board had ordered that a grievor be awarded the job in dispute: Zuibrycki, supra; Parent 555/82; Carrington 462/80; Lethbridge 60~80; Newburn and Phillips 485/81; Bullen 113/82. In' Zuibrycki, an earlier award in the same grievance had found the grievor relatively equal to the other candidates. In Parent, the selection committee had found the grievor relatively equal or superior to other candidates, but disqualified her on a basis which the Board found inappropriate. The award in Alum distinguished those awards on the basis that in each of them there had been a prior determination of relative equality. It dealt with the other awards this way: - 33 - ... in Newburn and Phillips the selection procedure was found to be flawed but the Employer elected to call no evidence at all at the hearing. The Beard found, not surprisingly, that the Union had established a prima facie case that the grievors were "relatively equal~ to the successful incumbents, and, in the absence of any evidence to the contrary, awarded the jobs to the grievors. In the instant case the Employer led substantial evidence with respect to the issue of ~relative equality." In Lethbridge there was an initial interview of 11 candidates as a result of which the selection panel rated the grievor and the successful incumbent "approximately equal" (as the Board found). There was then a second interview of just the grievor and the successful incumb%nt. That intervie ,w was found by the Board to be flawed. The Board concluded that since, on'the initial interview, the two candidates were found by the selection panel to be "relatively equal~, the job should be awarded to the grievor. In the instant case the selection panel did not find the grievor and Ms. $okoloski to be "relatively equal" in the competition. There wasa significant difference between their raw scores and the grievor ranked third behind another candidate. We cannot conclude as the Board did in Lethbridge that, on the basis of the results of the selection procedUre itself the grievor demonstrated her ~relative equality~. In Bullen the Board had evidence from the two supervisors of the grievor and the successful incumbent (who like here had not been consulted by the selection panel). One supervisor stated that the two were relatively equal. The other stated that the grievor was ~better suited" to the position in question. In addition the Board found that, while the selection procedUre was flawed~ the results of that procedure indicated that the grievor and the successful incumbent were "close enough to be rated as relatively equal". Thus there was clear evidence before the Board to persuade it that, as between the two candidates, the grievor had established 'relative equality~. The evidence before us does not point as clearly to that conclusion. Finally we refer to Carrington. Unfortunately that award is to be brief [sic] in its recitation of the facts and reasoning of the Board to permit us to draw any conclusions therefrom. It is not clear from the Alum award why the employer's merely having led some evidence on the question of relative equality should by itself, and without a finding .. that the evidence rebutted any prima facie cas~ made out by the union, preclude exercise by the Board of its power to award a job. This point is picked up in Sullivan, where material which the selection committee should have considered was jointly submitted to the Board by counsel for both parties so that, as the Board noted, Nit cannot be concluded that, as in Newburn and Phillips, the Employer submitted no evidence at all." The Board then observed that - 34 - It is our view that in such circumstances, the answer lies in the evidence itself, and not in ,the process of submission, ff the evidence before us, even ff jointly submitted, is sufficient for the board to determine the issue under article 4 o£ the collective agreement, with little or no discretion left to be exercised by the employer if there were a remission back, then good industrial relations would suggest that it is appropriate under the unique circumstances of this case for the board to bring the matter to fmahty. If it is proper to award the job in issue to the grievor when the union establishes a pr/ma fac/e case of entitlement and the employer leads no evidence, it must surely be equally proper to do so if the union establishes a prima facie ~case of entitlement and the employer leads evidence which is insufficient to rebut the union's case. The Alum award does not elaborate on the notion of "discretion lef~ to be exercised by the employer if there were a remission back." It is not apparent what sort of discretion its authors had in mind. In the matter before us, no-one argues that there is. anything discretionary about the decision the employer would have to make under Article 4.3 if there were a "remission back" here. In this case, the "required duties" are clearly defined. The union disputed the employer's position that the question about familiarity with computer packages measured a relevant ability. Apart from that, it did not quarrel with the qualifications and abilities which the employer identified as needed to perform those duties. We have found that the employer did not assess the requisite qualifications and ability in a objective and rational way. The employer and the union have both invited us to make · a finding on the question whether the result would have been more favourable to the grievor if qualifications and ability had been properly assessed. We agree with the panel in D. Bent that this is a question on which~he union bears the ordinary burden of proof on a balance of probabilities. Counsel for the employer argues that there is a question whether the evidence before us is a sufficient basis for a decision in the grievor's favour on this point, because Ms. Hartley did not testify and we do not have before us the evaluations of her supervisors. This was asserted in the alternative to his argument that it was - 35 - perfectly proper for the employer to have made its decision without the benefit of those evaluations and v~ithout regard to the evaluations of the grievor which were before it (including the one the employer had asked the grievor to supply). Parties to adversarial litigation are entitled to plead in the alternative. They are also expected to put before the decider all of the evidence an which they wish the decider to act in determining the matters in issue..The employer cannot rely on its own failure to adduce evidence as a basis for denying the~ grievor a remedy to which he may otherwise appear entitled on the evidence before the tribunal. When a party to adversarial litigation fails to introduce evidence which that party is in a position to introduce, the decider is entitled to infer that the evidence would not have advanced that party's cause. This is the answer to the seeming contradiction to which we referred earlier. Ms. Hartley also referred to the fact that she had not testified, in support of her argument that if we found that the evidence before us supported either awarding the job to the grievor or directing that the selection process be re-run, we should direct a re-run. She added that she had not had legal advice, and made reference to her complaint that the union ought to have supplied her with independent legal advice and representation. That complaint is before another tribunal. It is not for us to resolve it. Ms. Hartley was on notice from the outset that her rights might be affected by the outcome of this proceeding. She had the opportunity to get legal advice or engage and be represented by counsel. She was told she could participate fully in the hearing by questioning other parties' witnesses and calling her own witnesses and making argument. She did participate. Sl~.e chose not to call any evidence on her own behalf. Like the employer, she cannot rely on he, own failure to adduce evidence as a basis for denying the grievor a remedy to which he may otherwise appear entitled. Having disposed of this objection to our deciding it on the basis of the evidence before us, we turn finally to the question whether the grievor would have been the successful candidate if the selection process had been conducted in accordance with the requirements of the collective agreement. He woul~l have been the successfulcandidate - 36 - if his qualifications, and ability to perform the duties prescribed by the employer were either superior or relatively equal to the qualifications and ability of each of the other candidates. Since no-one suggests that the qualifications and ability of any candidate other than the grievor were superior to those of Ms. Hartley, an answer to this question requires only that we assess and compare the qualifications and abilities of two candidates: the grievor and Ms. Hartley. Both candidates clearly have sufficient qualifications anal ability to perforr.~ the required duties: they both satisfied the "qualification criteria" specified by the employer in the job posting. Each has some knowledge of the operation of a two-way radio system. The grievor has considerably more experience as a radio operator than Ms. Hartley does, with more sophisticated systems than she has handled. Each of them has some knowledge of transmitting and receiving information by means of a computer terminal, and some ability to receive information, compile composite reports and transmit via computer. Again, the grievor has considerably more experience in these matters than Ms. Hartley. ~' The grievor and Ms. Hartley both have clear, concise enunciation and a satisfactory standard of gr~mr~ar usage, ability to maintain composure, effectiveness and flexibility under pressure and ability to understand and follow detailed verbal and- written instructions. In our view, the results of the "letter test" do not demonstrate that Ms. Hartley's abilities are superior to those of the grievor in any of these areas. They both have good interpersonal skills.and th~ ability to deal tactfully, courteously and effectively with the public and co-workers. We are not persuaded that their interview performances demonstrate that Ms. I~ortley's skills and ability in these areas are superior to those of the grievor. There is no suggestion that Ms. Hartley has a greater ability than the grievor to work with a minimum of supervision or to learn to operate a facsimile machine and automatic multi-trunk telephone switchboard system. - 37 ~ The grievor and Ms. Hartley both have "typing and/or keyboarding to a basic level." Ms. Hartley can type quite a bit faster than the grievor. The committee 'appareptly thought that the answers to the "familiarity with software packages" interview question showed that Ms. Hartley was significantly superior to the grievor in some respect. Mr. Trudel. said that the premise of the question was that the more software packages sbmeone knows the more able they are to learn another one. The union argues that this was and is an inappropriate inquiry because it measures potential rather than ability. ignoring for a moment the difficulty of measuring it, it seems to us that a candidate's ability to learn may be a relevant consideration if learning is one of the duties required in the position. But if ability to learn is to be considered, the focus must surely be on the ability to learn the sorts of things the employee would be required to learn in the position. The evidence identified two pieces of software which the radio operator would have to use: the Road We~ither Information System and Lotus 1-2-3. Mr. Trudel acknowledged that the Road Weather Information System is similar in function to CPIC. Ms. Hartley and the grievor both had experience with CPIC, the grievor much more so than Ms. Hartley. The grievor has also used a computer aided dispatch program. Ms. Hartley claimed fs_m. iliarity with a program once used at the telephone company, a database program used in the courts and WordPerfect. We ~annot see how this information could, without much more, form the basis of a judgment that either of the candidates was more able than the other to learn to use either the Roadway Weather Information System 'or Lotus 1-2-3. WordPerfect is available on the office network. It couId be used to do some of the word processing which is a small part of the subject job. The significance of the cIaim to familiarity with WordPerfect which Ms. Hartley made during her interview is limited by two considerations, however. First, there is no evidence of the degree of her familiarity. Second, the employer did not designate knowledge of or familiarity with (or even ability to learn) WordPerfect as a qualification criterion in its job posting. Lotus 1-2-3 is referred to in the job description; WordPerfect is not. The weight assigned to some unspecified degree of familiarity with WordPerfect cannot be substantial when the employer's job documentation assigns so little significance to it in comparison with the other specified qualifications and abilities. In summary, the two candidates are relatively equal as to some of the requisite qualifications and abilities. Ms. Hartley's qualifications and ability are superior in the area of typing and word processing. Bearing in mind that relevant past experience is a qualification, the grievor has superior qualifications in the areas of radio operating and data transmitting. With reference to Ms. Hartley's typing and word processing skills, the union argues that little weight can be given to skills which exceed what the job requires. The employer makes a similar argument with reference to the grievor's extra qualifications as a radio operator. If qualifications beyond the minima required are given no weight, then the candidates are relatively equal. If some of these extra qualifications are given weight, they must all be given commensurate weight. The assignment of that weight must take into acc0~nt the fact that oral, radio and computer communication functions form a significantly greater part of the job, as the employer has defined it, than typing and word processing do. If it were the other way around, the qualifications in which Ms. Harttey is superior might well put her ahead of the grievor by the required margin. As it is, we are persuaded that however muCh~ or little weight is assigned to her superiority in those areas, at least equal weight Would have to be assigned to the grievor's superiority in the other areas which form a greater part of the job. Accordingly, we find that the qualification~si~and ability of the grievor to perform the job of radio operator at the New Liskeard District Office of the Ministry of Transportation were relatively equal or superior to those of each of the other individuals who applied for it in July 1991, inciuding the individual who was awarded the pesition. The employer's conduct in selecting that individual violated Article 4.3 of the parties' collective agreement. By way of remedy, we direct that the employer forthwith assign the grievor to that job (,vhatever its job title may now be), with effect - 39- as of September 3, t991. In addition, we order that the employer compensate the . grievor for any foreseeable loss which he has suffered as a result of its failure to assign him to that job as of that date. We remain seised, and will determine the amount of that compensation and any other issue arising out of our remedial order in this matter if the parties are unable to resolve them. Dated at Toronto this 3rd~ day of Ray, 1993~, ' Owen V. Gray, Vice-Chair P. Klym, Member A. Merritt, Member