HomeMy WebLinkAbout1991-2308.Falcioni.93-06-29180 DUNDAS STREET WE$~ S~TE 2f~, TORONTO, ONTAR~. M5~ 1Z8 TELEPHONE/T~L~PHONE; (416)326-138~
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2308/9[
IN T~E I~,TTER OF ~ ~RB~TI~T~ON
Un,er
THE CROWN EMPLOYEES COLLBCTIV~ BARGAINING ACT
Before
THE GRIEVANCE BBTTLEMENT.BO/~RD
BE~EN
OLBEU (Falcioni)
~rievor
The Crown in Right of Ontario
(Libor Control Board of Ontario)
Employer
BEFOg: W. Kaplan Vice-Chai~erson
I~ Thomson Me. er
~D. Montrose Me. er
FOR THB C. Flood
GRI~VOR Counsel
Koskie & Minsky
~arristers & Solicitors
FOR THE S. Gleave
EMP~YER Counsel
Hicks, Morley, Hamilton, Stewart, Storie
Barristers & Solicitors
FOR THE S. Vrbanac
THI~ PARTY Counsel
Orendorff, Vrbanac
Barristers & Solicitors
HE~ING June 11, 15, 1992
Dece~er 14, 15, 1992
January
May 20, 199~
IntroductiOn
By a grievance, dated August 26, 199~, Natalie Falcioni, an LCBO employee in
Sudbury, grieves that she was unjustly der. ieda permanent full-time
position contrary to the provisions of the' Collective'Agreement, t~y way of
remedy, the grievor seeks the position in question as well as retroactive
compensation and seniority. This case proceeded to a hearing in £udbury,
where the Board heard several days of evidence and argument. The
incumbent, Mr. Andrew Battistoni, w~s notified of these proceedings and he
attended with counsel. At' the commencement of the hearing, .counsel for
the employer and counsel for the incumbent raised a number of Preliminary
issues including an objection with respect to timeliness. By a decision
dated July 2_1, 1992, the Board found that the grievance was timely, and
therefore arbitrable. While many of the relevant facts are set out in °ur
preliminary award~ as that award dealt only with the procedural objection,
it was' necessary to recall the grievor and Ms.. Camille Ctements-Pitchkur,
. as well as two new witnesses to give evidence about the merits of the
matter in dispute.
. Evidence of Natalie 'Falcioni
The grievor testified on her own behalf. The grievor began working for the
LCBO in 1987 ~nd spent her first two years.with the employer as a casual
employee at Store #407. In June 1989, .the grievor.was .transferred to
Store #50, and has worked there ever since as a casual employee. The
grie¥or testified that she was transferred while 'away on vacation by Mr.
Norm Duhamel, the District Manager. Mr. Duhamel figures somewhat
prominently in this case, although he did not. attend the hearing or give
evidence. I~r. Duhamel is a former LCBO employee who was discharged by.
the employer and, apparently, is currently contesting his discharge before
the courts.
The grievor testified that there was a lot of talk, in the.summer of .1989,
that transfers would be 'forthcoming, and so before leaving on vacation, she
met with Mr. Duhamel. According to the grievor, in response . :to a question
.)
from Mr. Duhamel she adVised'him that the one store she did not wish to be
transferred to was Store #50. Mr. Duhamel advised her that she would not
be transferred while away. Upon her return, the grievor discovered that she
had been transferred to. Store #50 by ~lr. Duhamel.
The 9rievor als° learned, upon her return from vacation, that Mr: AndreW
Battistoni, another casual employee working at store #407, had also been
transferred, but to store #287. As already noted, Mr. Battistoni is the
incumbent of the position which is the subject matter of the instant
grievance, The grievor asked Mr. Duhamel why she had not been transferred
to this store, and she Was .advised by Mr.' Duhamel that she was transferred
because she was.the c~use of poor store morale. The grievor noted that
.prior to the June 1987 transfer she was senior to Mr. Battistoni .in hours
worked, the manner in which the seniority of casual employees is
calculated. After the transfer, Mr. gattistoni became senior to the grievor
in hours worked, and the grievor testified that there were generai(y fewer
opportunities to worl< at ,store #.50.
The grievor testified about her relevant education and experience. She
studied French in secondary, school, and has also taken some courses in
French as a second language at Cambrian College. The grievor became aware
several years ago that increased proficiency in French would be helpful to
her LCBO career~ and by the time of the job competition she had attained, in
her Cambrian College courses, an intermediate level.
The grievor first'became aware of the Wine Consultant position, which is
the position the grievor applied for but did not obtain, through a posting.
The position was first posted on November.?, 1990. The salient .parts of
the 'first posting are as follows:
ALL PERMANENT PART-TIME AND,PERMANENT FULL-TIME
CLERKS GRADE 3 IN STORES ....
Applications may now be submitted, within the '.
Stipulated time frame, for the position of;
POSITION TITLE: Wine Consultant
SALARY RATE: $13.65 - $15.52. per hour
STORE: # 585
LOCATION: Sudbury
ORAL INTERMEDIATE FRENCH LANGUAGE SKILLS REQUIRED
Under the general supervision of the Store Manager the
Wine Consultant assumes accountability and
responsibility for the following: superior customer
service; order stock, balance listings; help Trade
Representatives; Wine Clubs, 'and Service Organizations;
and contribute to the smooth running of the store. Assist
the department by.'. attending Product Tastings,
seminars, palate sensitivity and product ~nowledge
testing; accept product knowledge and customer service
teaching assignments; represent the LCBO at'Trade
Shows and functions; perform other duties as. assigned.
Oualifications: The successful candidate will be an
innovative problem solver, a strong communicator, both
in writing 'and orally; will possess the initiative to study
and to work with a minimum of supervision and will
demonstrate strong interpersonal skills, particularly in
the area of tact and diplomacy'. The successful candidate
will be skilled in public relations and have a proven
record of good staff relations; will generate a positive
image to the public; be willing to work in more than one
~ocation in a work week and possess a valid driver's
license.
Candidates will be required to have knowledge of and to
participate in a series, of tests on the subject of
beverage alcohol products.
The position was posted a second time, on December 10, 1990. The second
posting was identical to the first except that the' area of search was
widened to include casual employees. The grievor became aware of the
Position around the time of the'second posting, was interested in it and
applied for it.
Some time after submitting her application, the grievor was. contacted by
Ms. Clements-Pitchkur in a letter dated January 2_3, 199t, and advised that
she would .be given an interview. The January 23, 1991 letter indicated
that the interview Would consist of three parts: a question period of
approximately forty-five' minutes,' a written test of approximately twenty
minutes, and a product tasting test of approximately fifteen minutes. The
grievor testified that she discussed the relative rankings of the three parts
of the test with Ms. Clements-Pitchkur, who told her that the .question
period was the most important, followed by 'the written test, followed by
the tasting. Ms. Clements-Pitchkur also informed her that the cumulative
score would be determinative in selecting the successful applicant. The
grievor was further advised that candidates who passed this .part of the
selection process would be given a French test.
The grievor was interviewed on january 30, 1991. The selection committee
was made up of Mr. Duhamel, Mr. Michael Fagan, Manager Vintages Product
Knowledge support and Mr. Ted Kotilehti, Manager, Store #585.. It is useful
~.'
at this point to set out the marks received,.,by the grievor and by the
incumbent.
On the interview part of the assessment, ~.he grievor received a ranking of I
69% from Mr: Duhamel, 69% from Mr. Fagan and 82.5% from from Mr.
Kotilehti for an average percentage on this part of 74. Mr. Battistoni
received a ranking of' 83% from Mr. Duhamel, 86% from Mr. 'Fagan and 80%
from Mr. Kotilehti for' an average percentage on this part of 83.
On the written test, the grievor received a score of Z8.5,.while
Battistoni received a score of 39.5. On the tasting test, the grievor
received a score of 35.5 while Mr. Battistoni received a score of 51.5.. When
the results of the interview, written test and product taste were added
together, the 'grievor received cumulative marks of 109.5, or 65%.
Battist°ni received cumulative marks of 154.5, or 80%. Mr. Battistoni
received the highest overall .Score. and percentage of any of t. he fo. ur
candidates for the position. Another candidate, Ms. Durigon', received a
cumulative score of 11 8.5, or 70%. There is no dispute between the parties
that Mr. Battistoni has greater seniority, than the grievor.
The grievor testified that she had some concerns about the composition of
the panel, given Mr. Duhamel's presence on it. She did not, however, say
anything about her concern as she did not wish to prejudice her chances of
obtaining the position. The grievor testified that the interview went well,
and that she did not, at its conclusion, have any specific Concerns with
respect to it, With respect to the written test, the grievor testified that
the questions were relevant and were related to product knowledge. The
griev,or had no concerns about this part of the process, or about the taste
testing which followed. The 'grievor was advised at some point that if she
passed this part of the' selection process s,,he would be given a French test.
in e~rly February 1 991, the grievor' received a letter from Ms.
Cle~ents-Pitchkur who advisecJ her of the ~tate of her' French test. Another
letter,' dated February 11, -1 991. from Ms. Clements-Pitchkur, states:
"Coigratu~ations on successfully passing your interview."
The French test was conducted by Ms. Clements-Pitchkur, who explained the
requ,'irements and .the testing procedUre.· The interview was taped, and tlqe
gr~e~vor.was informed that the tape was confidential and that it would be
kep.t on file for a period of one year. The grievor answered multiple, choice
questions in French, and also had a more general conversation with
Cle~ents-Pitchkur, in which Ms. Clements-Pitchkur asked customer service
t
.questions and'the grievor answered th~m. The grievor was told _at the
codclusion of the test that she had scored 13 out of 14 on the multiple
choice questions. She was also told that a score of 10 out of 20 on the
T
remainder of the test indicated intermediate proficiency, although she was
not given her score for the remainder of the test. The grievor was advised
that a 'higher level of intermediate French language skills was required for
th~ Wine Consultant position, and that once all.of the candidates had been
I
te~ted that she, Ms. Clements-Pitchkur, would review and evaluate all of
th~ tapes and come to a conclusion.
Injmid-F'ebruary 1991, the grievor received a letter from Ms.
Clements-P~tchkur. ~The letter states:
i' Further to your recent test for intermediate oral French
proficiency we are pleased to advise that your. functional
level meets our requirement for designated .bilingual
positions.
Having completed our formal st;ndardized assessment,,
no further'oral testing will be requested - unless
required for some other spe.cific purpose.
The grievor testified that she was not s'u~prised to 'learn that she 'had
passed, as she had thought that the French test had gone well. The grievor
concluded that since French was a mandatory requirement of the Wine
Consultant position, and since she had Passed the interview part of that
process, there was a good prospect that she would be selected for the'jOb.
The grievor was, accordingly, surprised when she was told by Mr. Duhamel,
on February 26, 1991, that.she would not be given,the job, and that Mr.
Battistoni had been awarded the Position. Mr. Duhamel told her that Mr.
Battistoni was.the most qualified applicant. The grievor was upset about
this news, and one reason was because she had heard` some rumours that she
was the only applicant to posses the mandatory French language skills. The
grievor attempted to contact Ms. Clements-Pitchkur to discuss the matter,
and when she finally spoke with her, she was advised that the decision
communicated by Mr. Duhamel was not final, and that she would receive a
final decision in due course. The grievor had a number of other discussions
with Mr. Kotilehti and Mr. Duhamel before leaving for a pre-arranged
vacation in Florida.
Upon her return from Florida in the middle of March 1991, the grievor was
advised that the tape of her French language test, as well as those of the
other applicants~ had been sent to Toronto for testing. Mr. Duhamel.called
the grievor into his office and told her that the tapes were being sent away
to a highly reputable examiner. Mr. Duhamel advised her that this decision
was jointly'made by him, Mr. H. Adamson, the Director of the Northern
Region, and Ms. Clements-Pitchkur. Mr. Duhamei told the grievor that Mr.
Battistoni's French competence was close to hers, and that this was
'another reason for obtaining a second opinion. The grievor suggested that
the initial assessment should be relied on,'and she was told by Mr. Duhamel
that she should accept the final decision. The grievor testified that Mr.
Duhamel asked her "what she W. as going to do about'it," and went on to say
that "she had' better not doing anything, or else." The grievor felt
threatened by this encounter.
The grievor subsequently received a letter dated March 18, 1991. It reads.
as follows:
In response to controversy over the French language
proficiency levels of candidates and subsequent
consideration for the promotion, the candidates' Oral
Competence Test (i.'e., tapes) were forwarded to the
Coordinator of French Language Services for her
objective 'and professional assessment; these were
issued unlabelled (name of candidate and specific
position posting omitted).
The result of .her assessment was such that all
candidates were deemed to have iNSUFFICIENT
PROFICIENCY. These findings were also collaborated by
the 'French Language and Evaluation Services', the
accredited agency which conduc.ts French Language
testing for staff members of the Ontario Public Service.
Consequently, the final decision was based upon the
candidates performance at the selection process (i.e.,
=interview + written test + tasting test).
I trUst this should clarify any apprehensions in reference
to the French Language test.
The grievor was also formally advised, by {etter dated March 1 8, 1991, that
she was ,not the successful candidate for ~he Wine Consultant position.
After filing a Freedom of infOrmation Act request, the gdevor received
copies of her various results, aS well as of the' markings assigned by Mr.
Duhamel., She testified that she was somewhat surprised by some of the
grades Mr. Duhamel assigned to her, and she gave a number of exa'mples to
the Board. The .grievor noted that Mr. Fagan and .Mr. Kotilehti were much
more consistent in their grading of her on the interview part of the process.
Although the grievor had been advised that the tape would be kept for one
year, she was advised that it had been inadvertently destroyed.
tn cross-examination by employer counsel, the grievor agreed that as a
casual employee she would have considerable opportunity to develop
product knowledge. Moreover, at the time of the Wine Consultation job
competition, the grievor had completed the first of.a three-level LCBO
employee's product knowledge course. The grievor agreed that this was the
only reference, on her resume submitt:ed along with .her application, that
referred to LCt30 product knowledge,
The grievor agreed that she did not know Mr. Fagan, and had no concerns
about his participation in the selection process. The grievor had a good
working relationship with Mr. Kotilehti and had no concerns about his
participation in the job selection process. The grievor reiterated her
eVidence 'that the tone of'the interview was unexceptional, and that she
only raised concerns a§~)ut Mr. Duhamel's particiPation after she had been
advised that Mr. Battistoni 'was to be given the .position.
The grievor knew in advance of the interview that the ability to taste and
recognize product'was important to the position and would be tested. She
did not, however,' specifically'prepare for this part of the test. The grievor
was also asked about some of her answers to the written product
knowledge test. A review of this test indicates that some questions were
answered correctly, and 'others were not.,
With respect to the French test, the grievor agreed that she was' never told
that it was the final hurdle to being awarded the Wine Consultant position.
What she was told by Ms. Clements-Pitchkur was that it was very important
because the Wine Consultant position required more than intermediate
proficiency. The gdevor testified that she thought she .should have'been
given the job because she received a higher score on the French test than
did Mr. Battistoni. The grievor agreed that Mr. Battistoni received a perfect
score on the multiple choice part of that test while she received 13 out of
14. On the remainder of the test Mr. Battistoni received a Score of 10.5 and
the grievor received a score of 11.5. The grievor was not aware of any
employer, practice of sending 'French tests to-Toronto for a second opinion.
The grievor was also asked some questions by counsel for the incumbent..
The grievor agreed that there was nothing on her resume indicating any
interest or experience in Vintages products, while .there was evidence of
such interest and experience on Mr. Battistoni's resume. The grievor agreed
that she had sufficient 'time to prepare.'for all aspects of her interview, and
she had nO reason to believe that either the written test or taste test were
biased. The grievor agreed that if, as she testified to being told, 10 out of
20 on the French Language test indicated intermediate proficiency, then' Mr.'
Battistoni also passed the-French test. The grievor testified that even
before she applied for the Wine Consultant position she had heard rumours
that Mr. Battistoni was to be Selected., but she applied in any event. The
grievor agreed that she did not know who was on the selection committee
when she apPlied for the 'pOsition. The grievor testified that she believes
that Mr. Duhamel exercised some degree of influence over Mr. Fagan and Mr,
Kotitehti, although she agreed that she does not have any direct proof of
this. The grievor agreed that in terms of the resume screening scores,
there was at least one occasion when Mr. Duhamel. gave her a higher score
than either of the other two panel members.
Evidence of Michael Fagan
Michael Fagan testified on behalf of the employer. 'Mr. Fagan is the Manager
of Vintages. Product Knowledge and Support, and has held that position for
· three years, He began' his LCBO career in 1977 as a clerk. Mr. Fagan's
expertise in wine and spirits is recognized by various organizations, and he
has worked with a number of community colleges in the development of
product knowledge courses. Mr. Fagan testified generally about the
management and operation of Vintages. He noted, for examp!e,, that a
regula¢ liquor 'store stocks.approximately 3000 products. The products
stocked by Vintages are always changing, and some 60 to 80 new' products
are introduced each' month.
· There.are 47 wine consultant positions across Ontario, one of which is
located in Sudbury. As already noted, the Sudbury Wine Consultant position
is located .at Store #585. The Vintages. corner in that store stocks
approximately 150 products and enjoys annual safes of approximately
$160,000 to $170,000. Mr.. Fagan testified that Wine Consultant must
possess considerable product knowledge because Vintages customers
demand a high level of expertise. The Wine Consultant must be able to
advise customers about appropriate product selection, and must also be
able to give advice about how to develop a wine cellar as well as answer
'general questions such as those relating to product origin and manufacture.
In addition, Mr, Fagan test~ified that Wine Consultant must act as a resource
to other LCBO employees, as well as to the community at large. The.wine
Consultant recommends to.the LCBO what products to stock, given
community interests and requests, and act as an on-site quality control
officer.
In Mr: Fagah's opinion, it is absolutely essential that the Wine Consultant
possess a high degree of credibility as demonstrated through superior
product knowledge. Accordingly a wine consult, ant must be able to taste a
produce and identify it by taste,"colour and aroma. The Wine Consultant
must 'be able to write descriptive labels for products, and in doing so he or
she is also called upon to evaluate the products. Good interpersonal skills
are mandatory,
" Mr. Fagan testified' about his experience as a member of the-selection
committee that considered the grievor. Along with the other committee
members, Mr. Fagan screened the grievor's resume and Mr. Battistoni's
resume. Mr. Fagan testified why he gave different marks in eaCh screening.
For example, the only mention of product in the grievor's resume was her
desire t~ promote it. Accordingly, he gave her a 3 for product knowledge.
There were numerous references to product knowledge in Mr: Battistoni's
resume, so Mr. Fagan gave him a 10. Both the grievor and Mr.. Battist0ni
were selected' for interviews.
Mr, Fagan partic.ipated in these interviews, and he testified that all
applicants were given exactly the same amount of time for the interview
portion and written test. The grievor was given an extra ten minutes for
the taste test. Mr. Fagan draf.t~ed and marked the written test. He also
marked the taste test.. Mr. Fa!~an testified that to be considered for the
position an applicant had to piss all three parts of the interview process.
This was necessary because ' if, . an individual could not distinguish between
products by taste, for example,, it would be impossible for him or her to
give advice with respect to them. In Mr. Fagan's opinion, the grievor did not'
pass either the Written or the taste test, and she was also weak in the
interview portion.
Mr. Fagan testified that after: all the interviews were completed, the
selection committee discussed all four of the candidates and decided to
continue the process. Mr. Fagan thought that Mr. Battistoni and Ms. Durigon
had excelled. While he did not think as highly of the grievor's results, he
thought that it would be appropriate for her to also proceed to the French
Language test. Another reason for giving the grievor a ,trench t'anguage .test
was for general LCBO purposes with respect to determining the French
Language abilities of its empl,oyees. The fourth candidate, Mr. 'Eaton, was
dropped at this point because he 'had scored so tow. Mr. Fagan testified that
he would have been happy ifleither'Mr. Battistoni or Ms. Durigon were
selected. Mr. Fagan was not involved in any of the subsequent events.
Mr. Fagan was asked.some specific questions about the interview and tests.
Suffice it tO say that as a result of the written and taste test, Mr. Fagan
formed the opinion that the. grievor did not possess sufficient product.
knowledge or tasting ability., She did not know, for example, that 80 proof
and 40% alcohol were two different ways of expressing the same thing. In
another example,, she did not know.about the LCBO's private stock program.
She confused different products, and could not provide basic information,
such as country or region or origin. On the taste test, the grievor failed to
match various products. For example, she confused a sparkling wine with an
aperitif. In ~lr. Fagan's view, the gdevor did not have the necessarY
knowledge for the position, and he testified that this 'was reflected in her
written and taste test results.
In cross-examination Mr. Fagan was asked, a number of questions by union
counsel. He agreed that both the November and December postings indicated
that intermediate French Language skills were a prerequisite for the Wine
Consultant position, and that he did not have the authority to disregard that
requirement. Mr. Fagan agreed that there was a requirement that designated
stores must possess at least one employee able to deliver store services in
Frenchl Mr. Fagan told the Board that while he was generally familiar with
the French' Language requirements, this was not his area of expertise.
Mr. Fagan testified that he never spoke with any supervisors, nor did he
review any of .the candidates'.performance appraisals. He testified that the
Wine Consultant is not just assigned to the Vintages Corner, but is-required
to possess expertise with respect to ali LCBO products. Mr..Fagan was
asked about the 5% final difference in scores between the grievor and Ms.
Durigon. It will be recalled that the grievor received a final score of 65%.
Ms. Durigon received a final score of' 70%, which was based on an interview
result of 81%, a written test score of 28.5 and a taste test'score of 9.
Specifically, Mr. 'Fagan was asked how, given this 5% overalI difference, he
could say that Ms. Durigon had excelled and the grievor had not. Mr. Fagan'
testified that there was a significant difference' between these scores,
although he agreed that there was no written statement indicating what a
passing or qua. Ill!ed score was. He testified that each candidate was told
that they would be evaluated by a single process With three discrete steps,
and that the time periods for each step simply reflected the amount of time
required to complete that step.
Mr. Fagan was asked about the taste test, and he agreed that identification
of product was the purpose of that test. The test did not evaluate an
applicant's ability to describe particular products. Mr. Fagan testified that
identification of product was important because of the senses that were
involved, and that possession' of these senses was necessary for the
performance of the Wine Consultant position considered more generally.
Ivlr. Fagan testified'that he did not know any of the candidates for.the Wine
Consultant position, and that this job competition was, in fact, the first
one he had participated in as a member~of,the selection committee. Mr.
Fagan prepa'red the interview and product knowledge questions in advance c~f
the. competition. Mr. Fagan was questioned about some of. the grievors'
answers to specifiC: questions. He provided a rationale in every case for the
grade he ~ssigned. He agreed that upon selection as a Wine Consultant, the
successful applicant was to be given.an.opportunity for further training,
and that a lot of the necessary skills for the position would be developed
while on the job. IVlr. Fagan stated, however, that some' of the necessary
job skills, like sensitivity to different products, could not be acquired on
the job.
Evidence of Camille clements-Pitchkur
Ms. Camille Clements-Pitchkur testified. Ms. Clements-Pitchkur is the
'fluently bilingual LCBO's Coordinator of Human Resources for the. Northern
Region, and has occupied this position for five years. She is also the
Regional Evaluator of French Language Services, and was trained in how to
conduct these tests. Ms. Clements-PitchkUr testified that the Wine
ConSultant position was re-posted in December 1990 because there were no
permanent employees with the necessary skills. The area of search was,
accordingly, broadened to include casual employees. Ms. Clements-Pitchkur
testified that after receiving the applications, the selection committee
considered 'performance appraisals as well as the seniority of all of the
applicants. After the interviews were conducted, Ms. clements-Pitchkur
was advised that one of the applicants would be dropped, having scored so
poorly on the interview and product knowledge and taste tests. Mr. Duhamel
asked Ms. Clements-Pitchkur to test the remaining applicants for their
French Language skills..
Ms. Clements-Pitchkur testified that the purpose of the French Language
test is to determine the ability of the applicant to understand French and to
confidently express himself or herself in French, Ms. Clements-Pitchkur
tested the grievor on February 12, 1991. As already noted, the grievor
received 13 out of 14 on the multiple choice part of the test. Ms.
Clements-Pitchkur explained the other part of the test, and the different
'skills being tested, as well as how the grades were assigned. Ms.
Clements-Pitchkur passed the gdevor on the second part of the test
because she found that the grievor had an acceptable vocabulary, that the
grievor could conjugate her verbs and could be clearly understood. Overall,
Ms. Clements-Pitchkur rated the'grievor at the intermediate level.
Ms. Clements-Pitchkur testified that while Mr. Battistoni received a
perfect score in the .multiple choice part of the test, he failed the. spoken
part because he had difficulty in conjugating verbs and in correctly
calculating and referring to numbers. He could not, for instance, correctly
describe when e~xactly a product was expected to arrive, or whether a
product had already arrived. ..,
After conducting the French Language tests, Ms. Clements-Pitchkur spoke to
Mr. Adamson about the results.. She advised him that she .had passed l~he
grievor but failed Mr. Battistoni. Ms. Clements-Pitchkur testified that Mr..
Adamson was generally' disappointed in the results of alt the applicants,
because he was looking for a Wine Consultant with strong French Language
skills. Ms. Clements-Pitchkur advised Mr., Adamson, in this context, that
the grievor was just a borderl'ine pass.
About a week later, sometime in mid-February, Ms. Clements-Pitchkur met
with Mr. Adamson and Mr. Duhamel. By'that time Ms. Ctements-Pitchkur had
seen the overall interview results. The purpose of this meeting was to
discuss all of the results and select the successful candidate. At this
meeting, Mr. Adamson raised a concern about the one mark differential on
the French test between the grievor and Mr. Battistoni. The overall test
results were reviewed, and some concern was expressed about the grievor's
score on the taste test. Ms. Clements-Pitchkur testified that Mr. Adamson
expressed the view that while French Language skills could be developed
over time, it would be more difficult to develop an appropriately sensitive
palate. Mr. Duhamel expressed concern over the French Language results,
and suggested that the LCBO obtain a seco.nd opinion. The decision was
made to se'nd the tapes on an anonymous basis to Th~r~se Dorais in Toronto.
After receiving the tapes, Ms. Dorais reported back that none of the
applicants had intermediate French Language skills and, in fact, that Ms.
Durigon was the strongest of the three.' Ms. Ciements-Pitchkur passed this
information on to Mr. Adamson in early March 1991, and recommended that
Mr. Battistoni be selected. Ms~ Clements-Pitchkur testified that Mr.
Adamson was the ultimate decision-maker, but 'that her duties include
making recommendations on all appointments. Ms. Clements-Pitchkur
recommended that Mr. Battistoni be given the position because he had
~passed all of the components of the interview and, in 'particular, because he
had scored highly on the product tasting. In contrast, the grievor had not
scored highly on that part, and had failed' to accurately identify some
products, the identity of which was obvious on sight. ,
Ms. Clements-Pitchkur testified that none of the candidates were
completely qualified, and that she continues to believe that the g~ievor has
an intermediate French competence. Ms. Clements-Pitchkur has conducted
approximately fifteen to twenty' French Language tests. However, Ms.
Clements-Pitchkur is also of the view that Mr. BattistOni was the' most
qualified, and because he was also the most senior employee, he was the
best choice for the position. She also .testified that there was some
consideration, when it became clear that none of the' applicants met all of
the posted criteria, of opening the search to non-LCBO employees. The
decision was made not to do so because the employer wished to provide this
opportunity' to ~ current employee.
Ms. C(ements-Pitchkur was asked a number of questions in
cross-examination. She was shown a memorandum from Mr. Duhamel to Mr.
Adamson dated March 11, 1 991. This memorandum states that all the
selection committee membecs were agreed that the Wine Consultant
position ' should be awarded to Mr. Battistoni. Tl~e memorandum also
indicates that ail' of the applicants had intermediate French. Ms.
Clements-Pitchkur testified that this was not her memorandum, and that
she did not agree with the information found in it..According to Ms.
Clements-Pitchk. ur, she made her recommendation to Mr. Adamson. on March
6, 1991, and also advised him at that time of Ms. Dorais's findings that none
of the applicants had intermediate French. Ms. Clements-Pitchkur also
testified that she advised Mr. Duhamel of Ms. Dorais's conclusions prior to
March 1 l, 1 995, and that sl~e could not understand why Mr. Duhamel wrote in
his March 11, 1991 memorandum that all of the candidates had intermediate
French.
Ms. Clements-Pitchkur testified that she discussed Mr. Duhamel's.erroneous
memorandum, which Mr. Adamson marked "approved," with Mr. Adamson, and
that. Mr. Adamson told her. that he would discuss' the matter further with Mr.
'Duhamel. Ms. Clements-Pitchk'ur also testified about a power struggle
between her and Mir. Duhamet. The details of this need not concern us. What
is important, however, is Ms. Clements-Pitchkur'S evidence that it was Mr.
Adamson .who was the ultimate decisiommaker in this.case, and she also
noted that the District Manager does not have the authority to make
employment' offers.
Ms. Clements-Pitchkur was asked a number of questions about the French
test, and about how she went about evaluating the candidates..Ms.
Clements-Pitchkur used a 9rid which set out different competency levels.
Ms, Clements-Pitchkur did not know if Ms. Dorais used the same grid when
she evaluated the applicants. ~ls. Clement$-Pitchkur is of the view that the
Wine Consultant position requires intermediate French Language skills
because of the nature of the position.' Ms. Clements-Pitchkur and Ms. Dorais
had discussed what constituted intermediate competence when she "sent Ms.
Dorais the tapes, and they agreed on what the standard was. Ms.
Clements-Pitchkur testified that she learned that the tapes were destroyed
in t~arch 1991, when they were not returned With Ms. Dorais's report. She
also. testified th.at this was the first occasion in which there was a
variance between her assessment of an individual's French Language skills
and that of Ms. Dorais. She also testified that tapes are only sent to
Toronto for borderline cases, or when the LCBO has reason to believe that
there may be some linguistic sensitivity with respect to a particular
competition.
In Ms. Clements-Pitchkur's opinion, Mr. Battistoni could not accurately
conjugate his verbs, had 'difficulty with tenses and with Correctly referring'
to numbers, which was important in accurately identifying vintage. Ms.
Clements-Pitchkur testified that Mr. Battistoni contacted her. after his
test, and expressed concern about whether he would qualify for the job. Ms.
Clements-Pitchkur agreed that she wrote on his French Language test form
that he was not qualified for the Wine Consultant position but that he was
qualified for other permanent pOsitions, Ms. Clements-Pitchkur included
this information so that Mr. Battistoni would not.have to retested if he
applied for some other full-time j°b. While Ms. Clements-Pitchkur was of
the view that the grievor did not possess sufficient French for the Wine
Consultant job, she was of the opinion that he was sufficiently quail.fled in
French for a retail' clerk position.
Ms. Ciements-Pitchkur was asked some genera! questions about.French
Language requirements. She testified that the LCBO is required by stat, ute
to provide certain French Language services. The LCBO has come to an
agreement with the Office of Francophone Affairs for the provision of
French Eanguage services 'according' to a designated human resources plan.
This plan does not allocate French Language skills to particular positions or
classifications. Instead, it requires the LCBO, whenever there is a vacancy,
to determine if there is a need to require French Language skills in the job'
posting. This decision is made by considering employee complement, and
available French Language services relative to hours of operation. The LCBO
is committed, according to its human resources plan, to having one person
22
with adequate French Language skills during all ho~rs of operation of stores
that have been designated bilingual. Store #585 is one such store. "
Ms. Clements-Pitchkur testified that the previous Wine Consultant had
French Language skills. When the LCBO began the process of replacing him,
it was required to consider.available French Language skills at Store #585,
and when it did it found that the departure of the previous incumbent
created a French Language void, and, accordingly, that the new incumbent
should be appropriately qualified in French. When it became clear that none
of the applicants had the requisite French Language skills, Ms.
Clements-Pitchkur discussed the matter with'Mr. Adamson, and the decision
was made to put a linguistically unqualified person in the position with the
result that t~e LCBO would not be offering complete French Language
services at Store #585. ~s. Clements-Pitchkur testified that on other
occasions in the past,' the LCBO has given jobs to linguistically unqualified
persons subject to the condition that they become qualified, but that
difficulties arose when these conditions were cha~e~ged. Now all the LCBO
does is provide tuition reimbursement for persons taking French Language
Courses.
Ms. Clements-Pitchkur agreed 'that in reviewing the interview, product
knowledge and tasting results, Mr. Adamson was most concerned with the
scores received on product knowledge and taste testing.
Clements-Pitchkur agreed that most.people can learn about p~oduct
knowledge. Ms. Clements-Pitchkur further agreed, that providing the public
with French Language services was important, but she was of the view that
the grievor had.failed to meet a significant requirement of the position, and
that I~r. Battistoni, other than the French Language requirement, had met
of the requirements. -In Ms. Clements-Pitchkur's opinion, the only.two
persons who should have been given~the French Language test were Mr.
Battistoni and Ms. Durigon.
Ms. clements-Pitchkur was also asked about the decision to widen the area
of search to include casual employees. When the Wine Consultant position
was first posted in November 1990, only one applicant, Ms. Ka'ren McLeod,
applied. Ms. McLeod had no French Language skills and so she was
completely excluded from consideration. Subsequently, Ms. ~cLeod obtained
a full-time position, so her application was not reconsidered when the
decision was made to abandon the French Language requirement. One of the
four applicants for the Wine Consultant position, Mr. Eaton, was fully.
qualified in French but had none of the other qualifications, and his
application was rejected on that basis.
Ms. Clements-Pitchkur agreed that when she advised the grievor that she'
had passed the French Language test, she also told I~er that no further
testing would be required. Moreover, Ms. Clements-PitChkur also testified.
that she advised the gdevor of .this after discussing the matter with Mr.
Adamson, at which ,time he raised concerns about the relatively low
proficiency scores. ApprOximately one week after advising the grievor that
she had passed, the decision was made by Mr. Adamson, Mr, Duhamel and Ms.
Clements-Pitchkur to send the tapes to.Toronto for a second opinion.
Ms. Clements-Pitchkur was asked when she became aware that tvlr. Duhamel'
had contacted the grievor and advised her that Mr. Battistoni had been
selected. Ms. Clements-Pitchkur learned of this' from her secretary around
February 26, 199t, and she testified that she was concerned about these
allegations, but as she was not Mrl Duhamel's supervisor, there was little
that she could do about them. Ms. Clements-Pitchkur was concerned
because Mr. Duhamel was not the ultimate decision-maker, nor was all the
information necessary for the making, of a decision in at the time that Mr:
Duhamel was apparently advising applicants that a decision had been made.
In re-examination, Ms. ciements-Pitchkur testified that if the LCBO fails to
provide required French Language services' due to a shortage of.staff, there
are 'a few alternatives available including bilingual telephone information
lines available to all customers. Ms. Clements-PitchkUr also testified that
it was quite common for the LCBO to "grandfather" .Positions. This occurred
when 'a job was posted requiring French Language skills. If the most senior
quafified applicant does not have the language .skills, the employer
· considers the second most senior qualified applicant and if no linguistically
qualified applicant is found, the job is awarded to most senior qualified
applicant. That individual is, in effect, "grandfathered." According to Ms.
Clements-Pitchkur, this process, which was approved by the Office of
Francophone Affairs, provided that the LCB0 demonstrates that it has made
all viable attempts to fill the position with a linguistically and otherwise
qualified applicant. Ms. C.lem~nts-l~itchkur testified that the LCBO is loathe
to fill openings from outside the full-time and casual ranks, and she noted
that ~he union invariably objects when an attempt is made to do so: In the
result, the LCBO workforce does not have adequate representation of a
. number of designated groups. Ih Ms. Clements-Pitchkur's opinion, the
emphasis on. seniority also affects employee complement.
Ms. Clements-Pitchkur testified that the resume screening really only
identified one candidate who was qualified for the Wine Consultant
position' Mr. Ba.ttistoni. The other candidates were interviewed, however,.
- because Mr. Adamson wished to give them an opportunity to' present their
skills.
Evidence of Th~r~.se Dorais
ThbrSse Dorais testified on behalf of the employer. She has been the
Coordinator of French Language Services .for the LCBO for three years. He~
responsibilities include assisting the LC60 in enhancing its delivery of
French Language services, and she also conducts French Language tests on
LCBO employees. She has taken'special courses on testing, and estimates
that she has tested .approximately fifty people.
Ms. Dorais is also sent tapes from the regional offices, and she is sent
these tapes so that she can provide a second opinion on a testing result.
The purpose of this' second .opinion is to confirm whether an individual can
deliver French Language services. In providing this second-opinion,
Dorais considers the nature of the position and its linguistic demands.
Dorais is of the view that a Wine Consultant should be able 'to interact with
clientele.. Ms..Dorais was provided with the' position de. scription of .the Wine
Consultant job, and she considered that in reviewing the tapes. 'In her view,
none of the applicants tested met the intermediate standard. Ms. Dorais
listened to the tapes at least three times. She did not know any of the
applicants. Ms. Dorais did not return the tapes because she.thought that
they were copies. She later taped over them.
In cross-examination, Ms. Dorais was referred to a letter she wrote to ~ls.
Clements-Pitchkur on March 7, 1991 stating her findings. The letter refers
to the grievor, 'the incumbent and Ms. Durigon, and states that all three have
been found to possess "insufficient proficiency," and that Ms. Durigon was
the strongest of the three. The letter goes on to state:
This unofficial classification would correspond to
Intermediate, between the Iow and mid· levels.
In my opinion, it represents proficiency at a "bare
minimum"] Circumstances permitting, the position of
VVine Co'nsultant should call for at Ieast the Intermediate
+ level and preferably a more Functional Proficiency or
Advanced level of French. ..,
I would suggest that your decision be based on the
overall results of the interview and wine tasting,'
excluding the language proficiency testing (emphasis
not ours).
Ms'. Dorais made that recOmmendation because all of the applicants failed
the test. Ms. Dorais testified that it was not part of her job to ensure that
the LCBO deliver French Language services in the case of an internal
competition. Ner responsibility is to assess French Language competencY.
Moreover, according to'Ms. Dorais, it is not part of the mandate of the
Office of Francophone .Affairs to intervene in the internal administration of
the LCBO.
Ms. Dorais testified that if a francophone attended at a designated store and
did not receive service in French, be'or she. could 'file a comPlaint and the
LCBO might face a penalty under the provisions of the French Language.
gervices Act.
Ms, Dorais has received tapes from Ms. Clements-Pitchkur in the past, and
in her view, Ms. Ciements-Pitchkur is a qualified evaluator. Even a
qualified or certified evaluator will, on occasion, request a second opinion.
Ms. Oorais was questioned about some differences in the evaluation grid
she used and the one used by Ms. Clements-Pitchkur. In her view, these
differences Were. not very significant, as both grids provided a basis for
determining whether an individual possessed intermediate French'.
Additional Exhibits
Before turning to argument, some additional exhibits Were introduced into
evidence. These exhibits indicate that since 1989 and extending through
1992_, the LCBO has engaged' in the "grandfathering" practice referred to by.
Ms. Clements-Pitchkur in her evidence. A letter from Jacques Bastien, the
LCBO's Coordinator of French Language Services, to R~my Beauregard, the ·
'Executive Director of the Office of Francophone Affairs, dated December 22,
1988 sets out the LCBO's practice in this respect:
Further to our meeting of December 5th, 1988, I have met
with the Vice-President and· Officers. of our Human
Resources Division and with the Vice-President of our
Retail Division regarding our employees' concerns about
career advancements within stores designated to offer
French Language Services. The following proposal has
been agreed upon, and while it introduces a
"grandfathering" clause to meet the requirements of our
seniority driven system, 'it is also in accordance with the·
general terms of the discussion we had during our last
meeting at which Mr. G~rard Raymond, President of the
ontario French Language Services Commission, was
present.
The following Procedure would be adopted for staffing
bargaining unit positions designated to offer French
Language Services in designated stores:
1 Vacancies identified as' requiring French language
skills would be advertised as such.
2. If no qualified staff with proper linguistic skills
apply, the senior qualified unilingual candidate would be
appointed to the position (i.e., "grandfathering").
3. The appointed employee would be encouraged to take
French language training with reimbursement from the
LCBO. The training would not be mandatory (no
conditional appointments).
4. The LCBO would concentrate on recruiting sufficient
bilingual staff at the casual and permanent part-time
levels in order to meet our future needs for personnel
with .French language skills.
This proposed procedure should alleviate some of the
legitimate concerns of our employees, particularly in a
phase where the LCBO will have to plan downsizing its
retail employee complement when our Point of Sale
project is operational. It should also help us avoid
situations such as the one that occurred in the Massey
store. While every effort will be made to staff our
stores with personnel having the proper linguistic .skills,
we will, of course, continue to offer alternate measures
to fulfill our.obligations under the French Language
Services Act such. as access to our 1-800 infoline,
bilingual interior and exterior signs in all our stores
within designated areas, all LCBO publications to be
offered in a bilingual fOrmat and we will encourage the
trade to supply us with bilingual promotional material
for stores in designated areas.
It was agreed by the parties that the union had not, prior to this case, been
supplied with any information with respect to the Board's "grandfather"
policy. M°reover, it was noted by the union that the documents setting out
this policy, including the letter extracted above, were simply internal LCBO
materials, and did not indicate any official approval of the LCBO's policy in
this respect.
The Union's Argument
Union counsel began his observations be referring to Article 31.4(b) of the
Collective Agreement, which states:
The Employer agrees to give consideration to the ~.
'qualifications and ability of Casuals for Permanent
Full-Time vacancies at the entry level in their
geographic area, provided that no Permanent Part-time
employees have applied. Where qualifications and ability
are relatively equal, seniOrity shall' be the determin!ng
factor.
Counsel conceded, that the grievor was ju'~ior to the incumbent at the ti. me
of the competition for the Wine Consultant position by approximately 140
hours. Counsel suggested that in conside, ring this fact, the Board should
keep the grievor's evidence in mind about the circumstances in which she
was transferred .by Mr. Duhamel in the summer of 1989, and ~he resulting
diminution in her hours. These circumstances aside, counsel agreed that
this was a job competition ~jrievance with a twist given the' admitted, fact
that the grievor was the junior employee.
The twist in this case was, according to counsel,' the fact that the grievor-
was the only candidate for the position who had passed the French test. The
grievor, very simply, was the only applicant to meet the French Language
'requirement set out in the posting, and since she also received a passing
score on the interview, product knowledge and taste test, considered
cumulatively, she should have been, in the union's submission, given the
Wine Consultant position.
Counsel.cited a number of cases in support of his submissions, including
Canadian Food and Allied Workers Union, Local 175 and Great Atlantic and
Pacific Company 76 CLLC 33, and Re Mount Sinai Hospital and ONA 13 L.A.C.
(4th)'231 (Haefling) which he argued support the proposition that the Board
must, in reviewing job comPetition grievances, ensure that the collective'
agreement was complied with, and that the correct candidate for the
position in question was selected..
Counsel cited the Board's decision in L_all 1726/87 (Fisher) where the
requirements for a junior employee to prevail over a senior .employee in a
job competition case are set out: "IT]he grievor has to show that not only
was he superior to the incumbent but that this superiority was to such a
degree that his qualifications and ability were not relatively equal to that
of the incumbent" (at'l). COunsel argued that the grievor met this test
given that she possessed intermediate French. Counsel argued that the
French Language requirement was an essential requirement of the Wine
Consultant position, and that the employer could not unilaterally waive that
requirement to award the position to the incumbent. Counsel also
suggested that the evidence demonstrated that quite apart from the French
Language requirement, the 9rievor was proven qualified for the Wine
Consultant 'position, and counsel noted that there was only a 5% difference
between the grievor's final interview, p[oduct knowledge and taste test
score and that of Ms. Durigon, who Mr. Fagan described as having excelled.
MOreover, counsel argued that the employer explicitly recognized-that the
grievor had met the non-linguistic requirements of the position when it
notified her in writin9 to that effect, before arranging for her to receive' a
French Language test. Counsel suggested that the ,explanations proffered by
Mr. Fagan and Ms. Clements-Pitchkur as to why the grievor was sent for a
French Language test if she was not considered qualified for the position
were dubious.at best.
Counse[ also argued that the outcome of the selection process in this case
should not and could not be relied on. Counsel pointed to a number of facts
which he argued demonstrated serious improprieties in the process.
Counsel pointed out that the employer did not call either Mr. Adamson or Mr.
Duhamel to explain their roles in this process, and that the failure to call
these key management witnesses raised' more questions than it answered.
There was, counsel suggested, evidence before the Board indicating
improper activities on the part of Mr. Duhamel in the running of the
· competition and the selection of the incumbent. Counsel referred
specifically to the grievor's evidence of being threatened by Mr. Duhamel, to
her evidence of being prematurely advised by Mr. Duhamel that the
incumbent had won the job competition, as well as to the letter Mr. 'Duhamel
wrote to Mr. Adamson, which contained some erroneous information.
Counsel pointed out that l~lr. Duhamel invariably scored the grievor lower in
.the resume screening and interview parts of the selection process, and
suggested that this was another factor proving his~bad faith towards the
grievor.
While there was evidence of bad faith on the part of Mr. Duhamel, counsel
clearly stated that there was no such evidence with respect' to Mr. Fagan.
However, counsel pointed out that he played a relatively limited role in the
selection process, and was not involved in making the final decision. The
fact that the final decision-maker was never called was a significant one,
and counsel urged the Board to keep that in mind. Likewise, counsel noted
that the incumbent never testified about his qualifications and abilities,
and that the Board never had the benefit of really learning about his
suitability for the position.
Counsel also took issue with other aspects of the selection process. He
argued, for instance, that the taste test could not be relied on as it did not
provide any useful information about the suitability of applicants for the
Wine Consultant position. It did not, for instance, really assess the ability
of candidates to taste and describe various products. Counsel argued that
product knowledge could be learned, and that learning could include
distinguishing between various products. In any case, counsel argued, the
fact that a cumulative percentage was prepared comprising the results of
the interview, product knowledge and taste test indicated that it was the
cumulative score that mattered, not the results on each of the individual
parts.
"Counsel pointed out that there was no evidence about why Mr. Duhamel
recommended Mr. 8attiStoni for the. position, and that what evidence there
was indicated that he had relied on an erroneous and therefore irrelevant
factor, namely that Mr. Battistoni had passed the French test.. Moreover,.
there was no evidence in this case that the members of the selection
committee .had reviewed all of the applicants' personnel files and
supervisors' references.. Whether Ms. Clements-Pitchkur did so was,
counsel argued, irrelevant, because she was not a member of the selection
committee, Moreover, the fact that Mr. Kotilehti was on the selection
committee did .not remedy this defect, for there was no evidence that he
brought his knowledge of the candidates to the committee's deliberations.
Counsel also argued that there was no evidence in this case of a systematic
accumulation of information about the. candidates..The .evidence was,
counsel suggested, to the opposite effect., Counsel noted that candidates
were told that they would not be.given a second French test, but their tapes
were e. ffectively .tested a second time. Referring to Ms.
Clements-Pitchkur's evidence, counsel suggested that it was disturbing
that Mr. Duhamel played such a prominent role-in urging that the French
tests be reviewed, especially since there was evidence of some 'bias on his
part toward the grievor. Equally'important, counsel argued, was the fact
that there was no real consensus about a passing grade at the intermediate
level, and counsel observed that Ms. Clements-Pitchkur still believes that
the grievor had obtained that level. The absence of any recognizable
passing standard'clearly indicated to union counsel a failure to properly '
gather and consider information on the applicants. Counsel questi.oned the
conclusion that Ms. Dorais reached, and argued that her reporting letter
indicated that she-had established her own standard for assessing the
applicants. Counsel also questioned her ultimate recommendation, and
asked what authority she had to suggest to the LCBO that the requirements
of. the governing legislation not be met. '
Counsel argued, in short, that the .selection process in this case cannot be
relied on, and he cited a number of well-known Board authorities to the
effect that the results of job competition should, in these circumstances,
be set aside. Counsel argued that not only was this competition seriously
flawed, its resutt was also wrong because a required standard in' t'he job
posting had been unilaterally withdrawn to the grievor's prejUdice.
Referring to the Mount Sinai decision, as well as Canada Safeway Limited
- and. UFCW, Local 409 (unreported decision of Joyce dated January 2do, 1987),
counsel argued that the employer cannot unilaterally change a mandatory
requirement of a job posting wi~thout then giving all employees the
opportunity to apply for the position in question.
CoUnsel agreed that the employer has the right to establish qualifications
for a position, but submitted that it also has the obligation to ensure that
any changes in' those qualifications are brought to everyone's attention. In
support of this proposition counsel cited Kelowna General Hospital. and
Heath Science Association of B.C..(unreported decision of Morrison dated
July 11, 1 990) and Civil Service Commission of Nova Scotia and Nova
Scotia GOvernment EmplOyees Union (unreported decision of MacPherson
dated November .21, 1990) where the Board held that:
The'Employer is free, within certain well known
limitations, to set the qualifications for the job. Once
set, those qualifications are communicated to
prospective applicants through a job posting. There is an
obligation on the .employer to "§et the job posting right".
Once the qualifications are conveyed to the. prospective
applicants, they form the "rules of the~ game" for that
particular competition and must be adhered to (at 25).
in counsel's view, job qualifications that are imposed by statute, such as
the French Language Services Act, must .be taken even more seriously, and
this was another reason why the employer's decision to unilaterally remove
one qualification should be set aside. ..
Counsel also referred to Union Grievance/Ansara 1357/88 (Verity). In that
decision the Board was called upon, among other things, to consider the
reasonableness of the LCBO requiring intermediate French capacity for the
occupant of a position at an LCBO store in Timmins. As it turned out, a
unilingual senior employee was denied the position because he did. not speak
French. In the course of its reasons for decision, the 8oard concluded that
the employer had the right to establish job qualifications, and that the job
posting in question had to be viewed "in the reality of the French Language
Services Act..." (at 17). Counsel. argued that in the instant case, having
established the French Language requirement, and having found that the
grievor, and only the gdevor, met this qualification, she should have been
given the position. Counsel also argued that once the grievor met the
requirement, the employer had no right to delete it, especially since it did
not bring notice of that deletion to the attention of all eligible employees.
Turning to remedy, should the grievance be upheld, counsel, cited Re_
Zuibrycki and The Crown in Right of Ontario (Ministry of Tourism) 30 L.A.C.
(Zd) 207 (PritChard), Nixon 2418/87 (Fisher) ' and Re Bank of Montreal.
Tweed Branch and Commercial Workers Union, LocaJ 486 6 L.A.C. (3d) 289
(McCormick) awards, and argued that. this is not an appropriate case in
which to re-run the competition. Not only was t.here an allegation of Mr.
Duhamel's being biased against the grievor present, in the instant, case, the
passage of time made it impossible to fairly re-run the competition so
to replicate the conditions that originally existed. Accordingly, counsel
urged the Board to declare the competition a nullit.¥ and award the Wine
Consultant. position to the grievor wit.h full back-pay, benefits and
seniority along with interest~
The Employer's Argument
Employer counsel argued that there were three issues to be determined in
this case: First, did the employer select the right person? Second, were
there procedural flaws of such a magnitude so as to irreversibly prejudice
the entire procesS? And'third, assuming that there' were some procedurat
errors in this case, what is the appropriate remedy? In counsel's view, the
right person was selected, and while there may have been some procedural
flaws in the running of this competition, no competition is ever perfectly
run, and whatever flaws could be said to exist did not affect the
appropriateness of the ultimate result.
Before turning to each of these issues in more detail, counsel argued that
no adverse inference should be drawn from the employer not calling
Duhamel. Counsel noted that the union could have catled him if it Wished.'
Counsel also pointed out that Mr. Adamson was retired, and suggested that
there would have been no real benefit in calling him to give 'evidence as he
simply gave effect to the selection committee's conclusion that the
incumbent was the most qualified candidate for the Wine Consultant
position. Counsel also nol~ed that the union could have called Mr. Duhamel
but did not, and suggested that one reason was because he made a
convenient target for all sorts of uncorroborated, allegations. Counsel
pointed out that the grievor did not file a grievance about her transfer to
..~
Store'#50, and suggested that the Board should not rely on that incident in
reaching its decision in the instant case. Moreover, although counsel
conceded that some of Mr. Duhamel's activities in the running of this job
competition were questionable, if Mr. DuhameI truly had been prejudiced
against the grievor, counsel argued, then he would not have recommended
that she be given a French Language test. Counsel pointed out that one of
the selection committee members, Mr. Fagan, gave a full' account of the
committee's work, and he argued that it was absolutely clear that
Fagan, Mr. Kotifehti, Mr. Adamson and Ms. Clements-Pitchkur were not
prejudiced against the grievor in any way.
With respect to an alleged breach of the French Language Services Act,
counsel observed that the union had not called any evidence proving any
breach, and counsel referred to the documents that were tendered in
evidence indicating the existence of an approved "grandfathering" plan. In
counsel's submission the evidence established that the decision to request
a second opinion on the French Language tests was made entirely in good
faith, and was consistent with past practice. The evidence also
established, counsel argued, that Ms. Dorais evaluated the .tapes in a
thorough and' professional manner.
Counsel also made some observations with respect to the union's
authorities, and noted that in many of those cases the grievor was qualified
to perform the position in question. Coqnsel argued that that was ,not the
situation in the instant case, where the evidence established that she did
not have the necessary knowledge and abilities to do the job., Counsel also
argued that the evidence did not establish the fact that the employer
.deleted the French Language requirement from the posting; rather it merely
showed that the employer, having' concluded that none of the applicants
possessed the requisite French Language skirls, choose among the
applicants based on their skill,' ability and seniority - exactly as mandated
by.the Collective Agreement. Counsel also pointed out that the
"grandfathering" was in accordance with the LCBO's established and
approved practice and was entirely consistent with the employer's exercise
of its management rights.
Counsel cited a number of cases in support-of his submissions, including
Gavel ~45/80 (~]arton), Woods 2253/87 (Watters) and Cheng ~ 79/79
(Verity). I.n counsel's submission, the evidence clearly established that the
incumbent possessed superior qualifications to those of the .grievor, and as
he also had more ~eniority it was only appropriate that he be awarded the
position. Not only did a review of the candidate's resumes indicate that
this was the case, but so too did their interview, product knowledge .and
taste test results. While it may have been preferable if all the applicants'
personnel files had been considered, counsel argued that this was not a case
where the information in those files was material to the selection
committee in making its decision, as that committee was charged with
finding the applicant best suited to the Wine Consultant position, and an
entire process was put into place for applicants to demonstrate their
suitability.
In counsel's view, the employer carefully and' comprehensively gathered
necessary information about the applicants. Counsel argued that the
interview, product knowledge test and taste test were. all designed in such
a way so as to elicit relevant information about the applicants' abilities to
act as Wine Consultants. Counsel argued that the taste test was important,
because it demonstrated the ability to distinguish among products, and to
· convey to clients .relevant information about products that.' they might be
interested in purchasing. Counsel noted that insofar as the entire interview
process was concerned, the grievor testified that she felt that the process
had gone weJJ. There was, counsel suggested, no evidence whatsoever.of
any bias toward her. She was provided with every opportunity to present
her knowledge, and was even given an additional ten minutes to complete
the taste test.
Counsel also argued that even if there were some defects 'in the running of
the competition, the union had failed to demonstrate that they were of a
kind and quantity so as to fatally taint the entire process requiring, in the
result, that it be set aside. Counsel argued that there was no evidence in
this case of any .miscarriage of justice. Accordingly, counsel urged that the
grievance be dismissed. ~
The incumbent's Argument
Incumbent's counsel began his submissions by pointing out that there was
no onus on the incumbent in this case, and the fact that he had not testified
did not create 'some adverse inference against him.. Counsel argued that the
onus was squarely on the union to prove that the grievor was better
qualified or that some fundamental flaw in the process had occurred ,
necessitating the vitiation Of the result. Counsel suggested that the union
had failed to discharge its onus.
In counsel's submission, the evidence clearly established that the
incumbent Possessed superior qualifications and abilities than the grievor.
Counsel noted that all applicants had equal time to prepare for the
interview process., and the grievor was given additiona~ time for the taste
test. This fact alone, counse~ suggested, indicated the absence of any bias.
Counsel suggested that the grievor's evidence of bias was after the fact,
and counsel noted that the grievor gave evidence that she had no concerns
with respect to the content 'or conduct of the interviews or product
knowledge and taste tests. Counsel noted that the incumbent did very well
on these tests, while the grievor did not.
Counsel pointed out that while Ms. C)ements-Pitchkur may have found that
the grievor had passed the French test while the incumbent had not, the fact
remains that the tw° of them were still relatively close insofar as an
assessment of their French Language skills was concerned - only one point
differentiated them. Counsel agreed that there was some unfortunate
language in some'of the LCBO's written communications with the grievor,
but he argued that the Board was entitled to seek a second opinion on the
French Language abilities of the applicants, and that there was no evidence
of any' bad faith in its decision to do so.
In conclusion, counsel pointed out that even if the grievor could establish
relative equality with the incumbent, and counsel suggested that she could
not, she still could not succeed in this grievance because of the incumbent's
greater seniority, and he cited Re Ottawa Civic Hospital and ONA 9 L.A.C.
(4th) 348 (Mitchnick) in support of this principle. COunsel urged, that the
grievance be dismissed.
Union Reply
In reply,' union counsel argued that once the union establishes that the
grievor had the ability and qualifications to do the job in question, the onus
shifts to the employer to demonstrate that the correct candidate was
selected. In counsel's view, the union had discharged its evidentiary
burden, and pointed out that the employer advised the grievor in writing
that she had passed the interview part o¢, the selection process. Counsel
argued that it was extremely significant that the employer had' failed to.
call Mr. Duhamell Mr. Adamson and Mr. Koti[ehti. given their involvement in'
this case, and suggested that this was an appropriate case for .an adverse
inference to be drawn against the employer. In counsel's view, it Was
extremely sign. ificant that at the end of a long case, the grievor still did
not know why IVtr. Adamson made the decision that he made, and what
involvement Mr. Kotilehti and Mr. Duhamet had in making that decision.
Counsel also pointed out that' it would have 'been somewhat difficult for the
grievor to make a complaint against the DistriCt Manager, and suggested
that there was no reason to disbelieve the grievor's account of events.
Counsel pointed out that the documentary evidence with respect to.
grandfathering introduced, at the conclusion of the evidence consisted
merely of internal LCBO documents. There was no official recognition and
condonation of the Board's practice, and counsel suggested that this
practice, which was not carried out with the union's knowledge or support,
was somewhat questionable, as was the deletion from the posting in this
case of the mandatory French Language requirement.
Decision
Having carefully considered the evidence and arguments of the parties, we
have 'come to the conclusion that this grievance must be dismissed.
It is easy to understand why Ms. Falcioni feels aggrieved in this case. First
of all she was told by the LCBO that she. had passed the interview part of
the selection process. This obviously Created certain expectations.' The
(': 40 ~'
selected. In counsel's view, the union had discharged its evidentiary
burden, and pointed out that the employer advised the grievor in writing
that she had passed the interview part of the selection process. Counsel
argued that it was extremely significant that the employer had failed to
call Mr. Duhamel, Mr. Adamson and Mr. Kotitehti given their~ involvement in
this case, and suggested that this was an' appropriate case .for an adverse
inference to be draWn against the employer. In counsel's view, it was
extremely significant that at the end of a long case, the grievor still did
not know why Mr. Adamson made the decision that he made, and what
involvement'Mr. Kotilehti and Mr. Duhamel had in making that decision.
Counsel also pointed out that it would have been somewhat difficult for the
grievOr .to make a complaint against the District tVlanager, and suggested
that there was no reason to.disbelieve the grievor's account of events.
Counsel pointed out that the documentary evidence with respect to
grandfathering introduced at the conclusion of the evidence consisted
merely of internal LCBO documents. There was no official recognition and
condonation of the Board's practice, and counsel suggested that this
practice, which was not carried out with. the union's know~edge or Support,
was somewhat questionable, as was the deletion from the posting in this
case of the mandatory French Language requirement.
Decision
Having carefully considered the evidence and arguments of the parties, we
have come to the conclusion that this grievance must be dismissed.
it is easy to understand why Ms. Falcioni feels aggrieved in this" case. First
of all she was told by the LCBO that she had passed the interview part of
the selection 'process. This obviously created certain expectations. The
grieVor then took a French test, and had reason to feel confident in having
achieved, a successful result. Indeed,' she was subsequently informed that
she had passed the test, while she heard on the "grapevine" that she was the
only applicant to do so. Then she was telephoned at home by Mr. Duhamel,
who advised her that she had not been selected and that someone who had
apparently failed the mandatory French test had been selected. The grievor
had an extremely disagreeable and threatening encounter with k4r. Duhamel,
and learned that the tape of her test had been sent to Toronto for a second
opinion. That opinion was to the effect that she failed a test that she
thought that she had passed, and that she had been told that she had passed.
The grievor later discovered that the tape of her. test has been destroyed.
The employer's conduct of this competition, and its treatment of the
grievor, was hardly exemplary. While we did not hear Mr. Duhamef's side of
the story, what we did hear strongly suggests that'Mr. Duhamel did not act
appropriately. If the allegations about him. threatening the grievor are
indeed true, his conduct is unjustifiable.
We' find, however, that notwithstanding the many mistakes that were made
in this case, including telling the grievor that she had passed the interview
part of the process when she had not, and the confusion surrounding the
appropriate assessment of all candidates' French Language tests, the
grievance should fail because none of the mistakes is of such a fundamental
nature as to have irreversibly tainted the result. The mistakes in this case
are serious and disturbing, but we are' satisfied on the evidence before us
that the selection committee and the employer obtained the information it
needed to choose among the applicants, and that the correct choice was
ultimately arrived at.
This is not a case Where the employer made a selection decision based on
inaccurate or insufficient information. Rather, the evidence in this case
establishes that the employer systematically went about designing a job
competition so as to ensUre'that it had before it relevant information to
make a judgement as to the relative abilities of competing candidates to
successfully discharge the duties of a Wine Consultant. A' careful
examination of the interview questions and the product knowledge test
clearly demonstrates that this is the case. While it may. be, as union
counsel argued, that the product tasting test was of limited value, in
determining the suitability and competence of individuals to-act as wine
consultants, we cannot find that it was of no value, and we are satisfied
that this test served a useful purpose. It was not, in any event,
determinative of the job competition. I~oreover, even if the results of this
test were eliminated from t-he i~rocess, the incumbent was still the
superior candidate in terms of qualifications, knowledge and demonstrated
ability. Once again, he was also the senior candidate, and the Collective
Agreement' Clearly contemplates that in'a situation of this kind the most
senior candidate who is also the most qualified candidate shoUld be
aWarded the position in question.
We are in agreement with the general arbitral principle that the employer,
once it establishes qualifications in a job posting, must adhere to those
qualifications. In this case, we find that it has.· The grievor clearly passed
the French Language test administered by Ms. Clements-Pitchkur. However,
this pass was not a strong pass, and the decision to obtain a second opinion
of all the scores is understandable in the context of this case. That second
opinion is somewhat equivocal. On the one hand, Ms.-Dorais found that none
of the applicants had sufficient ability, in her view, to perform the Wine
Consultant position in French. However, she also clearly stated in her letter
.C..' ' 43
of March 7, 1991 that all three candidates are at the bottom rung of the
intermediate level. This evidence can be 'interpreted in several ways:
either that they all failed, or that they all passed. Whatever conclusion is
drawn, the evidence does not establish that only the grievor passed, and we
find nothing untoward in the employer's decision to obtain a' second opinion.
Given that no .one' passed the French Language requirement, or that everyone
passed, no special significance can be attributed to the French Language
abilities of the applicants.' Moreover, even assuming, for the sake of
argument, that only the grievo~ passed the French Language test (and there
was only a one point difference in the scores obtained by the cjr~evor and
the incumbent), the evidence establishes that the employer did not consider
her sufficiently qualified for the Wine Consultant position..Having
carefully reviewed the interview, product knowledge and taste test
questions, answers and results, we cannot take issue with this
determination, we should also note that we are not not making any
judgements or findings in this case about the employer's "9randfathering"
practices, nor about the requirements of the French Language Services Act.
At. the end of the day, we find that the grievor in this case is a junior
employee who received a lower score on the interview, product knowledge
and taste tests administered as part of the job competition. The evidence
establishes that all three parts of the selection process were relevant to'
the position in.question and were fairly administered. Obviously, we are
'greatly troubled by the grievor's evidence with respect to the activities of
Mr. Duhamel. His advising the grievor that she had lost the job competition
was clearly improper, and according to Ms. Clements-Pitchkur, inaccurate
in the sense that the final result had not been reached. The information
contained in his memorandum to Mr: Adamson is clearly erroneous, The~e
are serious questions about his conduct. We cannot find, however, that
these unanswered questions are sufficient, given all of the other evidence
we heard, to vitiate the hiring decision that was reached. While there is
evidence of mistakes in the running of the job competition, there is no
evidence of any impropriety.on the part of Mr. Fagan, Mr. Kotilehti, Ms.
clements-Pitchkur, or Mr. Adamson. Indee;:l, all the evidence establishes
that the senior and more qualified applicant obtained the position as .is
required by the Collective Agreement.
Accordingly, and for the foregoing reasons, this grievance is dismissed.
DATED at Toronto this 29th day of June 1993.
William Kaplan
Vic~irpers°n. '
I. Thomson
Member ~ ! ·
D. Montrose
Member
Addendum of I. J. Thomson
RE: GSB 23'08/91 Falcioni
I have read the vice Chair's decision and while I cannot
disagree with the result reached, I, feel I must make some comments
about management's handling of this competition.
The Employer treated Ms. Falcioni in a very unfair way.
She was told that she had Passed the French test, and then she was
told that she failed .it, and then she was t°ld that French
Language proficiency was no longer a requirement for the position.
Finally, .she was told that her tape had been destroyed. Meanwhile,
she learns through the grapevine that someone else had been
selected. She also believed that one of the members on the
selection committee was biased against her.
In my opinion the Employer has the responsibility to
conduct job competitions in a professional and fair manner. This
certainly wasn't done in this case. The activities of Mr.
Duhamel, a member of the selection committee, are extremely
questionable,' and I find it difficult to accept that Mr. Adamson
the ultimate decision maker was not called to give evidence as to
how he reached his decision. He was available and should have
been called by the Employer to tell us his reasons.
One 'final comment must be made'. I find it totally
inappropriate for management to mishandle a. job competition from
start to finish, and then come before this Board and say, "Well,
we reached the right result". To me, this sends out the wrong
message. .The message the Board should send out is that the right
result should be reached and that a proper ~and fair job
competition should be run. While I cannot disagree, in this case,
that the right result has been reached and ho.good'purpose would
be served by a're-run of the competition. I concur with 'the Award
with some serious misgivings given the nature and character of the
flaws present i~ the way this was handled by the Employer in this
particular job competition.
Respectfully submitted
I. J. Thomson
Member