HomeMy WebLinkAbout1991-1797.Quan.96-04-03 ' ONTARIO EMP£OY~S DE LA COURONNE
'%.;.', .i '" ',,i',., ..! CROWN EMPLOYEESDEL'ON;'ARtO
GRIEVANCE COMMISSION DE
SETTLEMENT R -GLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON MSG 1Z$ TELEPHONE/T~L~PHONE : (416) 326-1388
180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) MSG 1Z8 FACSIMILE/T~-L~COPIE : (416) 326-1396
GSB # 1797/91
OPSEU # 91E211
IN THE MATTE~' OF AN ARBITRATION
Un,er
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Quan)
Grlevor
- and -
The Crown in Right of Ontario
(Ministry of Labour)
Employer
BEFORE.: M. Gorsky Vic~-Chairperson
J. Carruthers Member
F. Cotlict Member ·
FOR T~E A. Lokan
GRIEVQR Counsel
Gowling, Strathy & Henderson
Barristers & Solicitors
FOR THE D. Costen
EMPLOYER Counsel
Legal Services Branch
Management Board Secretariat
HEARING- January 5, 6, 1993
May 18, 1994
June 14, ,1993
July 2, 1993
February 1, 22, 1994
Sept.ember 21, 1994
November 21, 22, 1994
April 21, 1995
December 1, 1995
DECISION
The Grievor, Thuy Quan, filed a grievance on July 23, 1991,
the statement of grievance being, as follows:
I grieve that I have been unfairly denied a
promotion to Consul.rant, Environmental Radioactivity,
Competition LB-347-9102.
The settlement desired was:
I request that the competition be re-run and
conducted in the [sic] fair and equitable way.
Ms. Quan testified that at the date the grievance was filed,
she held the position of Scientist: Senior Technician, which she
had held since 1981. Her position specification is contained in
Exhibit t Tab E, where the position title is shown as Radio
Chemist, R & D, which is in the Occupational Health and Safety
Division, Radiation Protection Services Branch of the Ministry of
Labour. The position specification indicates that the
classification title is Technician 4, Radiation.
The position in issue is that of Consultant, Environmental
Radioactivity, having the classification of Scientist 4. (A). The
position was'posted in March of 1991, with a closing date of
April 5, 1991. In her application for the position, Ms. Quan
indicated that her position title of Scientist+had not yet had
its level settled, which fact is noted for completeness, the
matter not having been regarded as otherwise material.
The posting attracted 28 applicants, the Grievor being the
only internal one, and, accordingly, the only one with seniority
rights under the collective agreement.
The successful candidate, Ephraim Schwartz, at the time of
his appointment had occupied the position as a contract employee
for a period of approximately 3-1/2 months. Further referenc~ to
him will be made, below.
'The Employer, through its selection panel~ proceeded to pre-
screen the r~sum~s and supporting documents filed by the
applicants and selected six of them to be interviewed, not
inlcuding Ms. Quan. It was-this failure to grant her an
interview that led to the filing of the grievance which is before
us.
The three members of the selection panel are:
Ernest G. Baker, who, from NoVember 1990 to December 1990
held the position of Consultant, Environmental Radioactivity with
the Ontario Ministry of Labour, Radiation Protection Service.
From January 1991, to the time he' gave his evidence, he was the
Acting Supervisor, Environmental Radioactivity with the Ontario
Ministry of Labour, .Radiatio~ Protection ·Service and supervised
the incumbents, including Mr. Schwartz, in the posted position.
Mr. Baker referred to Exhibit 4, being the organization chart for
the Radiation Protection Services Section and noted that he
reported to the Chief of the Radiation Protection service, John
Tai - Pau.
Jim Lee, Supervisor (Instrumentation), R&D, who also
reported to Mr. Tai-Pau.
Dr. Robert McFadden, who was at all material time the
supervisor of Non-ionizin~ Radiation, who also reported to Mr.
Tai-Pau.
The three'members of the selection panel prepared screening
criteria for the competition which are set out in Exhibit 1 Tab
H. The screening criteria contain a list of what the panel
regarded to be essential skills for the position; the maximum
value allotted to each of the skills; a description of what was
being sought under each of the headings; and the maximum range of
marks to be allotted, depending on the placement of a candidate
in accordance with the panel's assessment of his/her application
and supporting documents. The essential skills and maximumvalue
for each skill listed are as follows:
a) thorough knowledge of radiation physics. (Value 25).
b) strong background in radiation protection theory and
practice. (Value 20).
4
c) background in the analysis of biological effects of
radiation, radiation hazard assessment, pathways
analysis - of radionuclides, developmental
radioactivity guidelines, and internal dosimetry.
(Value 20)
d) Consultation skills. (Value 20)
e) ability to research, prepare, and critically.review
scientific reDorts. (Value 10)
f) knowledge of general safety and radiation and
protection criteria. (Value 5)
knowledge and experience with field radiation exposure
measurements and associated instrumentation. (Value 10)
The total possible number of marks that a candidate could
receive was 1i0. The six applicants scheduled to be interviewed
were (along with their scores):
A. Osdemir (74)
Harry Kostalas (90)
Ephraim Schwartz (81)
Lydia Morawska (84)
Jaromir Vones (60)
B.P. Pathak (60)
Ms. Quan's total score was 25, and there were ~0 other
candidates, who were also not granted interviews, who ranked
higher than her. If the scoring mechanism devised and utilized
by the panel was based on relavant criterea and if it was
administratered fairly, then we would have to conclude that Ms.
Quan was properly screened out as not having, by a considerable
measure, the kinds of qualifications and abilities associated
with the position.
Mr. Coston, counsel for the Employer, submitted that the
screening criteria were not only fair but that they were
reasonably related to those qualifications and abilities relevant
to the performance of the posted position. In addition, he
submitted that the panel had assessed the qualifications and
abilities of the candidates, based on the written materials
submitted'by them and their applications, and had fairly~and in
good faith arrived at the scores for each of the applicants. It.
was submitted that the assessment criteria did not have to be
perfect, and may nothave been so in this case. Nevertheless,
the criteria and the weight given to each of the factors relied
on by the panel formed a basis for a fair and reasonable
assessment to be made of the qualifications and abilities of the
applicants, and that this was, in fact, done.
6
Mr. Coston further submitted that even if Ms. Quan was
entitled to some additional marks, which he did not acknowledge
to be the case, she might, at most, be entitled to such a small
number as to leave her approximately 30 marks below the score of
60 marks given to Mr. Vones, the lowest scoring of the six
applicants who were afforded interviews.
Mr. Coston also argued that it was not necessary, in a
competition involving numerous applicants, to give every
applicant an interview, and that the Board has'long recognized
that it would not be unfair to limit the number of applicants'who
would be interviewed, where such decision is a genuine one based
on the need for efficiency, provided that the process is a fair
one and is conducted in good faith.
Mr. Coston also submitted that it was not incumbent on a
competition panel to take into consideration evidence of a
candidate's qualifications and abilities known to its members
relating to the performance of the duties and responsibilities of
a posted position but not clearly expressed in the written
material, and that to do so would be improper. We were asked to
find that the panel had behaved properly, notwithstanding the
attempt made on behalf of Ms. Quan to demonstrate that its
members failed to fairly assess her qualifications and abilities
because Mrl Lee, who had been her supervisor, did not, for the
most part, make known to the other members of the panel
7
information that he had about her qualifications and ability
relevant to the postei::l position.
Mr. Lokan, for the Grievor, submitted that the screening
process should be ruled to be invalid for a number of reasons:
1. Given the duties and responsibilities of the posted
position, the panel had developed an assessment and scoring
mechanism which distorted the reality of the duties and
responsibilities Of the position. This was said to be the case
because an inordinate number of marks (65-out of 110)were
allotted the first three criteria, whereas an insufficient number
of marks were allotted to the last three. Mr. Lokan also
questioned the way in which the criteria took "consultation
skills" into consideration.
2. In evaluating Ms. Quan's "essential skills," the panel
failed to adequately assess her qualifications and ability in
every one of the categories.set out in the screening criteria.
3. The panel unfairly and arbitrarily gave unwarranted credit
to ~ candidate possessing a masters degree in radiation physics.
This was said to distort the screening criteria and to be a
departure from those skills 'and abilities set out in the position'
specification, which was said to cover a broader spectrum of
academic and experience qualifications.
8
4. It was submitted that skills a throUgh c, because of their
structure, would result, and did result, in Mr. Schwartz, the
holder of a masters degree in radiation physics, being credited
up to three, times for possessing that qualification.
5. The panel was said, in almost every case where a
qualification claimed by Ms. Quan could be given a negative or
positive inference, to have drawn a negative one, thus depriving
her of marks she was rightfully entitled to.
6. The panel also misconducted itself'in failing to consider
evidence that it knew of, or should have known about,, relating to
Ms. Quan's qualifications and ability to perform the duties and
responsibilities of the posted position. This was as a result of
Mr. Lee's not sharing with the other members of the panel, and
not considering himself, his knowledge of Ms. Quan's
qualifications and ability acquired as a result of supervisiDg
her for a number of years.
7. The panel was also said to have acted in'bad faith in
awarding a contract position for the posted position to Mr.
Schwartz at a time when it ought to have advertised for the
'position. The result of affording Mr. Schwartz a period of time
in the position on a contract basis was to allow him to improve
his qualifications and ability to perform the work of the
position. Thereafter, it was submitted that the Employer had
9
structured the screening criteria with a view to favourin~ Mr.
Schwartz's candidacy. In support of this position, reference was
made to what was said to be the unwarranted structuring of the
screeneing criteria to mirror Mr. Schwartz's academeic background
and work experience.
Over the 12 days of hearing, the Board heard evidence during
which each of the provisions of the screening criteria was
analysed in support of the competing~positions. In addition, the
position specification for the posted position was reviewed
almost line for line for the purpose of either supporting the
Panel's process or attacking it, as was the language of the
posting. The qualifications of Ms. Quan and Mr. Schwartz were
also reviewed in painstaking detail, as were the qualifications
of some of the other candidates and former incumbents, and those
of some'of the members of the competition panel..
Mr. Schwartz was given notice of his right to attend and
participate in the hearing and to be represented. He attended
during many of the days of hearing. It was acknowledged that
some time after the hearing commenced he resigned from the
position in order to accept another o~e.
The following witnesses testified on behalf Of ~he Employer:
Mr. Baker, (January 6, May 18, June 14, July 2, 1993); Dr. Robert
10
McFadden (February 2, February 22, September 21, November fl,
1994); Mr. Schwartz (NovemDer 21, 1994).
The only witness called by the Union was Ms. Quan who
testified on November 22, 1944 and April 2t, 1995. Argument took
place on December 1, 1995.
Ms. Quan gave detailed evidence of her qualifications and
ability and how they related to the performance of the posted
position. Ms. Quan carefully reviewed her educational background
which, includes a Master of Engineering in Environmental
Engineering (received in t986 from the University of Tor'onto) and
a Master of Applied Science in Bioproeess Engineering (received
in 1975 from the University of New South Wales, Sydney,
Australia). She testified in considerable detail how her
academic qualificatiOns related to the posted position. She did
the same thing in reviewin~ her experience with the Radiation
Protection Service, Ministry of Labour, since 1981, her work with
R & D Services and Instruments Ltd., Scarborou~h, Ontario as an R
& D Engineer, and her work as a.research assistant in the
Radiochemistry Research Laboratory, Carleton University (Ottawa).
She also referred to her work with the Institute of
Standardization, ~in Saigon, Vietnam, as an environmental
scientist from 1975 to 1979, with particular emphasis on her
experience in reviewing statistical methods of sampling. She
also referred to her undergraduate degree, being a B.Sc. (Hon.)
11
in Industrial. Chemistry (1973) obtained from the University of
New South Wales.
MS. Quan reviewed the evidence of Dr. McFadden and Mr. Baker
relating to the kinds of qualifications and ability that an
incumbent in the posted, position would have to possess and gave a.
detailed statement of how her particular training and experience
furnished her with the skills called for, based on her
qualifications and abilities when placed on the template of the
screening criteria used by the panel. In so testifiying, she did
not acknowledge that the criteria were either fair or reasonable.
Mr. Baker and Dr. McFadden were equally ~mphatic in
testifyin~ that based on their evaluation of the written material
filed by her, the information furnished did not disclose to them
that she had the requisite qualifications and ability that she
testified she had as they related to the posted position.
We are satisfied that all of the witnesses, testified in good
faith and without any intention to mislead the Board, and, given
the wide differences between them, the Board was faced with an
extremely difficult task.
On several occasions, Ms. Quan referred to Mr. Lee's
knowledgs of her qualifications and abilities, which he was said
to have acquired when he was her supervisor. It was submitted
12
that with this knowledge any misgivings the panel had about
whether the statement of courses taken, degrees obtained and
experience gained by her were relevant to the posted position
should have been easily resolved in her favour. Although'she was
of the view that the information.furnished by her, standing
alone, should have clearly disclosed to the panel that she
possessed the very qualifications' and ability that were required
for the successful performance of the duties and responsibilities
of the position and therefore disagreed with the assessment of
Mr. Baker and Dr. McFadden, she was also of the view that Mr.
Lee's actual knowledge of her abilities and qualifications should
have resolved any residual doubts the panel might have had if he
had passed this information on. Her skills'that were said to be
known to Mr. Lee included not only the technical and scientific
'ones she possessed but, as well, communication skills based on
activities related to her position and work.
Based on the submission of counsel for the Employer and'on
the evidence of Mr. Baker and Dr. McFadden, we are satisfied that
Mr. Lee, for the most part, took special pains to insulate
himself and his colleagues from relying on knowledge he had about
Ms. Quan's qualifications and ability.
Given the evident good faith 6f all of the witnesses and of
the technical nature of the evidence, much of which could not be
easily reduced to lay terms (even for members of the .panel~ who
had taken courses in physics at university, albeit many years
ago) it is not surprising that the Board could not conclude that
the screening criteria were unfair either in the case of the
essential skills chosen, the total marks available for each
segment of the assessment or the way in which the scores were to
be determined.
There are some matters which caused us concern, but, on a
review of all the evidence, there was an insufficient basis for
holding that the screening criteria were unfair.
We were somewhat troubled by the degree of emphasis placed
on the possession of a masters de~ree in radiation physics.
While we do not wish, in any way, to deprecate the role of
experience in achieving qualifications in even complex technical
and scientific areas, we note that Mr. Baker was not only able to
carry out the duties and responsibilities of the subject position
with no university training inphysics, he rose to a position
where he supervised'incumbents.in the position. Mr. Baker ~
impressed us as. a very intelligent and knowledgeable person and
we are certain that his qualifications and ability enable him to
carry out the requirements of the position in a very competent
fashion. Our concern is that the qualifications established for
the position, which placed a special emphasis on holdin~ a
masters degree in radiation physics, somewhat overstated the
realities of what was required' in order to successfully carry out
14
the duties and responsibilities of the position. Even though
some room was left for other academic qualifications and
experience to serve'as a qualifying factor, it is clear that the
paneI gave special emphasis and credit for a masters de~ree in
radiation physics and that those applicants who did not possess
such a de~ree were at some disadvantage. Nevertheless, there was
insufficient evidence to permit us to conclude that this~emp~asis
represented such unfairness as to require us to hold that. the the
screenin~ out of the Grievor was invalid for that reason.
We were also somewhat concerned about what appeared to us to
be a tendency on the-part of the panel to take a rather narrow
view of the information furnished by Ms. Quan. However, we feel
that any tendency on the part of the panel to deny her the
benefit of a doubt when reviewin~ the information furnished by
her, was something that its members could do when acting in ~ood
faith, based on the available evidence, assumin~ that that was
the only evidence it could rely on. If a screenin~ panel, acting
reasonably and in good faith, concludes that .the information
before it does not convey to it evidence of a candidate havin~
certain required skills, based on an assessment on her
qualifications and ability, then its conclusion should not be
interferred with.
Given Ms. Quan's evidence, which went beyond the statement
of her qualifications and ability set'out in her application and
15
support±rig documents, we are satisfied tha~ she had many more of
the necessary skills required for the position than she was given
credit for and that if her evidence had been before the panel she
would not just have received a few additional marks. We are
satified that if this information had properly been before the
members of the pane~., there would have to have been a major re-
evaluation of their assessment of her skills for the purpose of
marking her in accordance with the screening criteria. If the
scoring of Ms. Quan's application and supporting documents (25
out of 110) was reasonably accurate, then she had a wildly
inflated view of her qualifications and ability for the posted
position. Havin~ heard her evidence, we do not believe this to
be the case.
Havin~ heard the evidence of Ms. Quan, we conclude that many
of the concerns of the members of the panel would have been
resolved if Mr. Lee had informed the other members of his
knowledge relatin~ to her background of skills, qualifications
and abilities arisin~ from her academic qualifications as well as
her work experience, if he, in fact, had that knowledge. Mr.
Coston, for the Employer, t6ok the position that it would be
improper for the panel to do so even if Mr. Lee's knowledge was
relevant, which he denied. Mr. Lokan took the position that not
only was that information relevant, it was improper for the panel
to ignore it.
16
If we conclude that the panel was correct in insulating
itself from relevant information about a ~andidate not clearly
expressed in the written material filed, then we would have to
deny the grievance. If we conclude, that the process was flawed
because Mr. Lee and the panel regarded themselves as limited to
considerin~ 0nly information found within the four corners of the
written material, then the grievance would have to be allowed,
subject to our determining what relief was appropriate in the
circumstances.
We should note that Mr. Baker testified that Mr. Lee did
comment, in a very limited way, about certain matters that he was
aware of because he had supervised Ms. Quan. Nevertheless, Mr.
Baker made it clear that the members of the panel re~arded the
material before them to be the sole determiner of what scores
were to be 9iven to an applicant as part of evaluating the
screenin~ criteria. The only comment referred to by Mr. Baker
was shown at the top of Ms. Quan's application, recorded by
himself: "Jim made us aware~that she calibrates equipment."
We note that certain information not specifically set out in
an applications was, nevertheless, relied upon by the panel. The
principal example where this was done was in the' case of a'holder
of a Masters of Science degree in Environmental Radiation, where,
based on the knowledge of the panel about what the holder of such
a degree would have studied, certain assumptions were made
17
relating to the skills possessed by a candidate. We note that
Ms. Quan referred to a number of courses that she took that she
regarded as containin~ sufficient information to convey to a
reasonably knowledgeable panel that those courses satisfied
certain of the.skills requirements alluded to in the Posting.
Unfortunately for Mst Quan, this information did not prove
sufficient for the panel so as to allow them to conclude that
they represented a shorthand way of setting forth her relevant
skills.
If the Employer wished to'have the panel rely solely on the'
written material filed by applicants, it would have been a simple
ma~ter to alert applicants to the fact that this was going to be
the case and, especially in the case of internal applicants, that
they should not assume that the knowledge of any member of the
panel would be relied upon and in fact would be ignored.
At the same time, the nature of a screening exercise
necessarily imposes a different burden on an employer, and in a
sense it is a lesser burden. That is, in the conduct of
screening applicants to see which of a number of them will be
given an opportunity to be interviewed, the panel does not have
to seek out any information with respect to the applicants if it
chooses for the sake of efficiency not to do so. This is to be
contrasted with a case where the competition is at the interview
phase. At that stage of compliance with the provisions of art.
18
4.3 of the collective agreement, not only must the.panel act on
relevant evidence which is before it, it must take reasonable
steps to secure relevant evidence with respect to such
applicants.
In both cases (at the pre-screening and interview phases) a
selection panel can only act on relevant evidence, must act in
good faith, and if it utilizes irrelevant evidence, it must be
shown that it did not affect the decision. A panel's decisions
as to which.applicants are to be awarded the position (after the
interview phase) and which ones are to offered an interview {at
the pre-screenin~ phase) must be ones that might reasonably have
been arrived at on the evidence.
In the case of a screening exercise, such as the one'before
us, the panel usually does not have an opportunity to, nor is it
required to, seek clarification of statements contained in the
written material filed. In the case before us an issue was
joined between the parties as to whether the panel must take into
consideration personal knowledge of any of its members about the
relevant qualifications and ability of applicants. The
Employer's position was that this was not only unnecessary, but
improper, relyin~ on Bent, 31/88 (Knopf). The Union took the
position that the panel could not ignore information relevant to
the qualifications and ability of a candidate held by one of its
members, and relied on Jenkinson & Dickey 2268/87 etc. (Kates).
19
In the Bent case, which was a screening case,.the panel
"assessed the applicant qualifications solely on the basis of
what was revealed in the written application and attached
r~sum~s. Personal knowledge of the applicants was not
considered." (At p. 4) The employer did this "to keep the
process unbiased." (~bid). In the Bent case, as in the one
before us, the panel relied upon the r~sum~s submitted and
accepted statements in them as true. The panel "never discussed
any knowledge of the applicants as people." (ibk~). This was
largely the case in the matter before us. Also as in the case
before us, "the panel drew upon its collective knowledge of the
positions and educational backgrounds held by the applicants."
(ibi___~d).
As in the case before us, "Part of the grievor's complaint
[was] that the panel ignored personal knowledge about him held by
~ [one of the panellists] .... "(At p.5)
In the Bent case, the panel accepted statements in the
applications at face value unless they had knowledge of the
duties and responsibilities of a particular position that
conflicted with a statement in an application. (At p. 5)
A statement was made by the grievor in the Bent case in his
application concerning a certain ability which one of the
panellists, drawing upon his own knowledge of the role of the
2O
position, knew to be false. As "this statement appeared to the
panel on its face to be incorrect and suspect" the ~rievor was
not credited with a point in the particular category. (At p. 5)
The evidence at the hearing disclosed~ however, that the
9rievor, in fact possessed the particular ability. This fact
"was known or had been known to [a member of the panel]." (At p.
5) However the panellist said that the knowledge had "slipped
his mind" during the screening process which the Board found to
be "highly suspect and distasteful." iibid)
The members of the panel in the Bent case were consistent in
their evidence that they:
... would not have let personal knowledge about [the
9rievor's] actual experience supplement or detract from his
application. However, members of the panel did use their
experience and knowledge about positions to assess the
apparent credibility of [the 9rievor's] claim to have a
certain qualification on the basis of the factors that he
stated in his application .... [T]he grievor was left in the
position that the Committee was refusin9 to let any personal
knowledge of an applicant supplement or detract from the
information stated in the application. However, the members
of the Committee did draw upon their collective experience
to assess the statements made in the applications. Thus,
when the 9rievor made a statement claimin9 to have acquired
experience in a certain position the Committee knew .would
not normally result in such experience, the Committee
questioned the credibility of [the grievor's] claim. But
the committee did not draw upon Ia panellist's] knowledge of
[the 9rievor] to dispel any suspicion. (At p. 6)
Similar positions were taken by the panel in Bent with
respect to other skills and abilities, where the application was
deficient, but where management had knowledge that clearly could
21
have overcome any doubts based on an examination.of the
application. (At p. 7)
At p. 14 of Bent, the Board noted that the grievor claimed
that he was capable of performing two of the required skills:
"conducting inspections and writing reports," but the panel
discounted his possessing those skills even though he had
performed them in the past without criticism, which fact was
personally known to the chair of the panel.
The Board, in Bent, decided that the panel had conducted
itself properly because it was satisfied on the evidence that:
... the applicants were treated consistently. The selection
panel seems to have made a distinction between utilizing
knowledge of the candidates as individuals as opposed to
knowledge of the details about educational programmes or
positions they stated to have completed or held. In other
words, the Committee did not draw upon knowledge of a person
to supplement or detract from an application, even if a
question arose. (At pp. 14-15)
The Board held that the grievor:
... would have received unfair advantage over the other
applicants because no other candidate had the benefit of
additional personal input from Committee Members. Thus, the
9rievor was treated the same as other c~ndidates and that
the personal qualifications that he may have had but which
he did not include on the form were not considered.
Instead, the members of the Committee imposed.their own
knowledge about the stated positions held by the applicants
in [sic] others to assess the applications. (At p. 15)
Further at p. 15, the Board stated that it might:
...even be that we are wrong and that the Committee might
have been acting unfairly by rejecting personal knowledge of
the grievor to allay some suspicions about the
qualifications he claimed. To have done so would have only.
been using objective information to clarify an ambiguity
created by his'unsophisticated and sparse.application. But
even if that had happened, the grievor must still be
considered to have been left lacking in two critical
areas ....
At p. 16, referring to the "application alone,''~ the Board
did:
...not find the evidence [to warrant] ... interfering with
the Committee's assessment that [the grievor's] abilities
were not sufficient. Further, [the Board did] not agree
with the Union that the members of the Committee should have
used their personal knowledge of his communication skills
over the last few years to judge him qualified. At the pre-
screening stage, all the Committee needed to rely upon was
the application itself.
The Board concluded (ibid.):
... no matter how the application of the grievor is
assessed, he would or should not have scored points in two
or three of the properly seledted criteria. The Committee
chose ohly to interview candidates who scored aZ least seven
out of eight points. At the highest, the grievor could only
have scored six. As stated above, efficiency considerations
allow management to choose not to interview everyone.
In the Jenkinson & Dickey case, relied upon by the Union,
the grievors applied for a courier position, but were screened
out and did not receive interviews. Because of the nature of the
position, only those applicants who exhibited on their
applications "experience" in heavy moving and lifting of
furniture, which represented a substantial component of the job
requirements, were invited to the interview. The grievors did
23 ~
not indicate such experience and they were both denied an
interview and their applications were rejected.
It was of no relevance to the selection panel that the
grievors had previously been invited to an interview for the
exact same position in a prior competition and that in their
present employment were engaged in the heavy lifting and moving
of furniture, equipment and other items. (At p. 4)
In finding that the grievance must succeed, the Board stated
that the obvious qualifications for occupying the position were
overlooked by the panel. (At p. 5)
Further at p. 5, the Board stated:
... There existed no apparent reason why the selection
committee should have blocked from their minds the grievors'
current employment duties to avoid reaching the conclusion
that each deserved the benefit of an interview. Moreover,
the excuse that the selection committee_would be extending
an unfair advantage to those applicants whose duties and
responsibilities it was aware of is simply without merit.
The Jenkinson & Dickey case was distinguished in Bent, at p.
15, because there "the panel was told to give effect to knowledge
of applicant's previous job duties." It would appear, that the
panel of the Board in Bent, regarded the Jenkinson & Dickey
selection panel as having failed in its responsibilities because
its members were aware of the grievors' previous job duties
because of their imputed knowledge of the position in question
24
and not because of the 'knowledge of the individual employee's
work actually performed.
In J~n~inson & Dicke3, at p. 5, the Board noted that one of
the panellists, in his capacity as Personnel Manager, "would know
or ought to be deemed to have known the employment functions of
each of the candidates."
We do not find the decision in the Jenkinson & Dickey .case
to have been clearly based on the knowledge of the job
specifications of the grievors. It is equally consistent with
the language of the decision to find that the Board based its
conclusion on a finding that one of the members of the panel was
aware of the actual work performed by the grievors.
The Board, in Ben__t, candidly acknowledged that it might have
been wrong in rejecting personal knowledge of the grievor, which
knowledge would have amounted to "objective information to
clarify an ambiguity in the ~rievor's "unsophisticated and
sparse application." (At p. 15)
We do not regard it as being inherently unfair to the other
candidates for a selection panel to rely on the knowledge of one
of its members relating to the qualifications and ability o[ an
applicant in the course of scoring the candidates during a pre-
screening to determine which of them will be interviewed. It
25
would be unfair if the panel went out of its way to secure
information which it did not already have about an applicant,
while denying the same treatment to other applicants. The
situation is different where information is within the knowledge
of a panel member. In this case it was suggested that the
information was with Mr. Lee, who had supervised Ms. Quan for a
period of time and who was said to have some knowledge of her
qualifications and ability as they related to the posted
position. Because Mr. Lee did not testify, we did not have the
opportunity to assess what information he did have about MS. Quan
and whether it ought to have caused him and the other panelists
to substantially alter their scoring.
To rely entirely on the written application and associated
documents and to reject personal knowledge about an applicant
could lead to a situation where an applicant, in the posting
before us, had indicated that he or she possessed a Masters
degree i~ Radiation Physics, when this was untrue to the
knowledge of one of the panel members. To be' consistent, the
panel would have to ignore this knowledge and give credit to an
applicant.for holding this degree. The same could be said for
any number of other qualifications being sought by the panel. It
is one thing for the members of the selection panel to actively
seek out information with respect to one or only some of the
applicants, which would be unfair, but it is quite another thing
for the panel to rely on relevant information already within the
26
knowledge of one of their number. We note ghat this is what the
panel appears to have done in B.ent (at p. 6), although the Board
saw the panel as having relied not on its personal knowledge of
the grievor but of the duties and responsibilities associated
with the position he occupied.
Under the rule stated in Ben___~t, an applicant could benefit
from the knowledge of the panel of the qualifications and ability
gained by a person who has acquired a particular de~ree - in this
case a Master of Science in Radiation Physics. In this case some
(and perhaps all) of the panel appeared to have detailed
knowledge of what qualifications and ability were connoted by a
person acquiring the Master of Science degree (in Health and
Radiation physics) earned by Mr. Schwartz, even though he did not
list the courses taken by him, while the two Masters degrees
earned by Ms. Quan (M. Eng. (Environmental Engineering) and M.
Appl. Sc. {Bioprocess Engineering)) did not have the same effect,
nor did the list of courses set out by her. Knowledge by a panel
of the q~alifications and ability of an applicant based on an
understanding of what is connoted by the holding of a particular
degree would be.no more fortuitous than'knowledge gained because
one of the panel had supervised an applicant. TO the extent that
the acquisition of such knowledge by the panel is fortuitous, an
applicant may benefit (or may not benefit) from it, and may even
suffer a detriment. Accordingly, we find that where a panel
relies on information obtained by one of its members, for
27
example, as a result of supervising one of the applicants, it
would merely be using relevant information about the'very factors
it is bound to examine. We do not think it is necessary to
restrict using such information solely for the purpose of
clearing up ambiguities in an application. An applicant, through
oversight, may not have included a qualification or ability that
he or she possesses, or may express it, in a way that does not
convey to the panel what was intended by the applicant. If the
panel knows that the applicant possesses such qualifications and
ability, then its menlbers panel should take them into
consideration.
We emphasize that the situation would have been different if
the panel had gone out of its way to secure information not
already within the knowledge of one of its members. The
'situation is to be contrasted with the case where interviews are
conducted after a pre-screening exercise, where the panel would
have to take into consideration all relevant evidence which it
had or which~it could reasonably obtain.
In this case, the panel, although it acted in good'faith,
did not properly carry out its obligations when performing the
pre-screening exercise'because it did not consider any of the
information which Mr. Lee had concerning Ms. Quan's
qualifications and ability that were relevant~ to the performance
of the posted position. Ms. Quan testified that Mr. Lee would
28
have known that she possessed most of the qualifications and
abilities associated with the posted position because of his
having supervised her. Ms. Quan, was a most impressive witness,
and Mr. Lee did not testify so as to enable us to test the
statements made by her with respect to her qualifications and
ability based on her academic degrees and her work and related
experience.
In allowing the grievance, we are faced with the difficulty
of determining what is a proper remedy in the peculiar
circumstances of this case, the facts having arisen almost four
and one-half years ago. We have concluded, that, insofar as the
Grievor is concerned, she may have been improperly screened out ~
because the panel did not, for the most part, take into
consideration.her actual abilities and qualifications known to
Mr. Lee as a result of his having supervised her. In fact, the
panel appears to have taken certain personal information about
Ms. Quan into account, where, in one case, it concerned her
lacking certain qualifications and and in another where her
qualifications were acknowledged. Mr. Baker testified about this
being the case and referred to certain notations made on the
'Grievor's application to that affect. We also note that there was
some indication from a notation made on Mr. Schwartz's
application that he had certain qualifications for the position
based on his supervisor's (Mr. Baker) report.
29
We are. satisfied that the pre-screening exercise carried out
was done so improperly for the reasons set out.above.~ Given the
nature of the technical aspects of the position and of the
considerable number of differences between the evidence called on
behalf of the Union and the Employer relating to the Grievor's
abilities and qualifications, we would normally regard this as
beinH a case where her qualifications and abilities ought to be
re-evaluated by the panel on the basis of such relevant
information as Mr. Lee had, which he should share with the other
members of the panel. However, given the considerable passage
of. time and because We found the memories of the panel members
who testified to have been, as might be expected, adversely
affected by this fact, we order that Ms. Quan be given an
interview along the same lines as was afforded the six candidates
who were offered interviews, and that the decision of the
Employer as to whether or not Ms. Quan is declared the successful.
candidate shall be in accordance with the provisions of art. 4.3
of the collective agreement:
In filling a vacancy, the Employer shall give primary
consideration to qualifications and ability to perform the
required duties. Where qualifications and ability are
relatively equal, length of continuous service shall be a
consideration.
We do not regard Ms. Quan having been offered an interview
in an entirely different competition for the position of
Consultant - Environmental Radiation, with a different group of
applicants, as representing a proper means of offering her
redress, which alternative Mr. Coston suggested was sufficient.
The applicants were different, and as has been noted in a number
of other cases, all competitions are not the same, even for the
same position.
We have been alerted to problems which may~arise should Ms.
Quan not be offered the position after bein9 interviewed, and
understand that certain objections will be~raised by the Employer
to the Board's jurisdiction to adjudicate any claim she may make
following the interview, because she was said to no longer be
covered by the collective agreement, having "voluntarily"
resigned her position in the public service~
For his part, Mr. Lokan stated that this panel of the Board
should' retain jurisdiction in the event that the matter does not
end after Ms. Quan has been interviewed, and indicated that it
would be his position that this panel already has jurisdiction to
deal with any grievance Ms. Quan may have arising out of. an
alleged violation of art. 4.3, should she not be appointed to the
position after she has been interviewed.
At this time it is p~emature to endeavour to deal with such
difficulties as may arise followin~ Ms. Quan being interviewed.
However, we retain jurisdiction to deal With any difficulties the
parties may experience in implementing this award.
31
Dated at Toronto this 3 day of April, 1996.
M.R. Gorsky - Vice Chairperson
~ther~r
"I Dissent" (dissent attached)
F. Collict- Member
DISSENT
RE: G.S.B. # 1797/91 (T. QUAN)
This Member is not in agreement with the award rendered in this case.
The issue to be decided by this Board is whether or not Ms. Quan was improperly denied
an interview because she was screened out in the pre,screening process.
The grievor'scored a total of 25 points out of a possible total of 110 points available in
the established pre-screening 'process. Her score was some 35 marks below the score of
60 marks given to Mr. V0nes,' the lowest score of the six applicants who were offered an
interview in the competition. As stated at page 5 of the award,
"Ms. Quan!s total score was 25, and there were ten other candidates, who
were also not granted interviews, who ranked higher than her,"
(Underscoring added~)
With reference to the matter of p?e-screening associated with job competitions, thet
jurispmder~ce is quite clear.
As stated in G.S.B. #256/82, (Borecki),
"In conducting a job competition, an employ6r can. not be required to
interview all the applicants, regardless of thek suitability" (P.7)
Also, in G.S.B. # 31/88, (BENT), Arbitrator Knopf has stated,
"... the Committee (pre-selection) did not'draw upon knowledge of a person
to supplement or detract from an application, even if a question arose ·
Thus the grievor was treated the same as other candidates in that the
personal quatificalions, that he may_haye had but which he did not include
on the form v~ere nq[ consi~lcred ..... "(P. 15).
and furthermore,
"... we do not agree with the Union that the members of the Committee
should have used their personal knowledge of his communication skills
over the last few years to judge him qualified. At the pre-screening stage,
all the Committee needed to rely upon was the application itself_". (P. 16)
(UndersCoring added..)
In the ~ubject case of Ms. Quan, it is significant to note that the Board'found as follows,
"We are satisfied that all of the witnesses testified in good faith and without
any intention to mislead the Board, and, given the wide differences between
· them, the Board was'faced'with an extremely difficult task." (P. 11)
Essentially therefore, the Board did not find that the pre-selection panel had acted
improperly or in bad faith to exclude the grievor from the final selection for the interview.
Rather, the majority in this case has taken the position that,
" .... we are satisfied that Mr. Lee (one of the pre-selection panel members),
· for the most part, took special pains to insulate himself and his colleagues
from relying on knowledge-he had about Ms. Quan's qualifications and
With the greatest of respect to his colleagues on this Board, this Member is of the' view
that the Board does not have this knowledge at all. Ms. Quan stated in her
evidence that Mr. Lee had this knowledge of her qualifications and ability. The Board
does not know this. There simply was no evidence that Mr. Lee "took special pains to
insulate himself and colleagues" from knowledge he might have had concerning Ms.
Quan's qualifications, and ability.
In this respect this Member is not in agreement with the following statements made in this
award at pages 14 and 15, as follows:
"Given Ms..Quan's evidence, yehich went beyond the statement of her
qualifications and ability set out in her appli, cation and supporting
documents, we are satisfied that she had many more'of the necessary skills
required for the position than she was given credit for and that if her
evidence had been before the panel she would not just have received a few
additionaI~ marks. We are satisfied that if this information had properly
been before the members of the panel (selection), there would have to have
been a major reevaluation of their assessment of her skills for the purpose
of marking her in accordance with the screening criteria .... "
(Underscoring added)
The three members on the panel were Mr. Lee, supervisor of Ms. Qaan; Mr. Baker, the
individual who supervised and who had worked at 'the position of Consultant,
Envkonmental Radioactivity; and Dr. McFadden who was the supervisor of Non-ionizing
Radiation and who was very knowledgeable of the academic and experience requirements
related to the position to be filled.
For the above noted statement at pages '14 and 15 of the award to hold any validity
whatsoever, Mr. Lee, based upon the knowledge he might have of Ms. Quan's
qualifications and ability and which Ms. Quan claimed he had, would have to convince
his two panel colleagues that Ms. Quan warranted at least an additional 35 marks to bring
her to the level of Mr. Vones who scored a total of 60 marks in tile pre-selection process
and who scored the lowest of the six candidates interviewed. Ms Quan's score would
have to increase l~y 140% to reach the score attained by Mr. Vones.
In this respect it must be noted further that Mr. Lee was a supervisor in the
Radiochernistry Research and Development section which is a laboratory functi°n where
Ms. Quan works and which is separate and ~distinct organizationally from the
Environmental and Ionization areas where Mr. Baker and Dr. McFadden work. Mr. Lee '
is not a physicist and would not be in a position to relate the courses taken by Ms. Quan
to the requirements for the position of Consultant, Environmental Radioactivity.
Moreover, never having supervised this position, how was he to have influenced Mr.
Baker and Dr. McFadden as to the applicability of Ms. Quan's qualifications and abilities
to the subject position?
Had he done so,'he clearly would have advantaged Ms. Quan in relation to the other 19
jobs applicants. It is for this reason that the finding of Arbitrator Knopf in G.S.B. # 31/88
(BENT) was so significant,
" .... we do not agree with the Union that the members of the Committee
should have used their personal knowledge of his communication skills
over the last few years to judge him. qualified. At the pre-screening stage,
all the Committee needed to rely upon was the application itself" (P. 16)
Cleary, Mr. Baker and Dr. McFadden were in a much better position to evaluate the
application of Ms. Quan as against the criteria for the position in question as Opposed to
Mr. Lee; and as stated in the award at page 11,
"Mr Baker and Dr. McFadden were equally emphatic in testifying that
based on thek evaluation of the written material filled by her, the
information furnished did not disclose to them that she had the requisite
qualifications and ability that she testified she had as they related to the
posted position."
(Underscoring added)
"We are satisfied that all of the witnesses testified in good faith and without
any intention tO mislead the Board."
In view of all of the above, this Member would disn~iss this grievance.
One final point should be mentioned relative to this case. At page 17 of this award the
following statement was made,
" .... 'the nature of'a screening exercise necessarily imposes a different
burden on an employer, ~r~d in a s~ase it is a lesser burden.
..... this is to be contrasted with a case where the competition is at the
interview phase."
(Underscoring added)
As a back-drop to this case tl~erefore, it'should be noted that the burden that the Union
has endeavoured to impose on the Employer in this case was identical to, if not even
more detailed than the type of analysis, and scrutiny that the Employer's actions normally-
are subjected to in a regular job competition case. This was completely unnecessary and,
in the viewof this Member is not a burden which the Employer is required to bear.
The jurisprudence is clear. The Employer is not required to interview all applicants; and
absent bad faith or some unacceptable bias on the part of the Employer the pre-screening
process need not be as complicated and 'detailed as it was in this case. Most importantly,
the burden of a high threshold of analysis in the screening process relative to the selection
. of job candidates from amongst those who aggl,g for the job is not required by the
Collective Agreement. The Union has endeavoured to represent such an analysis as an
obligation of the Employer.
To accept the Union's position in this respect would place the same burden upon the
Employer in the screening process of applicants that is now required in the final
Candidate selection process. This is not a burden that the Employer is required to meet. ·