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HomeMy WebLinkAbout1991-2525.Liblik & Scipnek.93-11-19 ONTARIO EMPLOYfi-S DE LA COURONNE · :". CROWN EMPLOYEES GE L'ONTARIO c.o .ss.o, BOARD DES GRIEFS ' ;~80 OUNDA$ S?REET WEST, SUITE 2100, ~"OF~Ot,~TO, ONTARIO. MSG · r80~ RUE DU~VOAS OUEST, BUREAU 2 ;~00, TORONTO (ONTARIOL MSG ~,Z8 FACSf.,%'flLE/T~.,~CO.Z::YE .. 25.25/91 IN THE MATTER OF AN ARBITRATION under' THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN O?SEU (Liblik/Scipnek) 'Grievor - and - The Crown in Right of Ontario- (Ministry'of Transportation) Employer BEFORE N. Dissanayake Vice-Chairperson E. Seymour Member D. Halpert Member FOR THE N. Coleman GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE C. PeterSon EMPLOYER Counsel Filion, Wakely & Thorup Barristers & Solicitors HEARING July 7, 1992 December 2, 14, 1992 DECISION The Board had before it three grievances filed by Mr. Len Liblik, Mr. Bill Scripnek and Mr. John Lowen, all alleging that following a job competition they were denied the position of Senior Designer in .the Ministry's Planning and Design Section in Kingston, Ontario. Each grievor alleged that the employer had thereby violated article 4.3 of the collective agreement. At the commencement of the hearing union counsel advised the Board that Mr. Lowen had. withdrawn his grievance. Therefore the Board ~roceeded with the remaining two grievances. Article 4.3 reads: 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. Following the comDetition process, the position was awarded to Mr. Peter Dillon. He was provided with the required notice of this proceeding, but did not attend the hearing. Union counsel Mr. Nick Coleman represented both grievors. The union's primary contention is that both grievors had proven their ability to perform the duties of the Senior Designer position during six month acting assignments. Performance appraisals covering these assignment periods were filed on behalf of both grievors. The union contends that"the grievors' excellent .performance in the six month acting assignments in the very'position, puts a heavy onus on the employer to establish that the incumbent Mr. Dillon was substantially superior in qualification and ability than the grievors. The union submits that the'employer failed to give any meaningful' consideration to the grievors' experience and their actual performance in the Senior Designer position. It is alleged that the employer rel.ied solely'on the results of an interview, which union counsel characterized as an oral examination. Union counsel submits that based on their experience and their actual performance in the Senior Designer position during the six month acting assignments, the grievors should be considered at least as relatively equal to Mr. Dillon in qualifications and ability. It.is common ground that both grievors had significantly more ~seniority ~than Mr. Dillon. While Mr.' Dillon had approximately 2 years ~f service, Mr. Scripnek and Mr. Liblik had approximately 27 years and 21 years respectively. Counsel recognized that there were two grievors, but only~one vacancy.~ ~is position is that both grievors had relative equality with regard to Mr. Dillon and also vis-a-vis each other. He claims 4 that the competition process~ used by the employer did not truly reflect the'actual abilities of the grievors to.perform the.duties of the position and that the employer ignored the best available evidence, namely the grievors' actual performance in the very position, in the circumstances he submits that if the Board~agrees, the Board should award the position to Mr. Scripnek, who~ has ~he longest seniority. Employer counsel disagrees, that the employer failed to give credit to the grievors' past experience and their performa'nce in the Senior Designer positibn during the acting assignment. He points out that the competition process comprised of two parts, an oral interview worth 70 percent and a supervisor's rating worth 30 percent. Counsel observes that usually reference checks are done following interviews, but no marks as such are allotted for the reference checks. C6unsel submits that the supervisor's ratings, took into account the candidates' experience and included the performance in their acting assignments in the Senior Designer position. Counsel ~points out that while the grievors had completed their 6 months acting assignments as Senior Designer at the time of the competition, at the time Mr. Dillon was about 2 months into his acting assignment as Senior Designer. Counsel submits that the supervisor's ratings reflect an upt° date assessment of the candidates,'including $ their experience and. their performance in the Senior Designer position. Mr. Ken Polson, the Senior Project Engineer testified that he chaired the selection panel, which included two other 'Project Engineers. There is no dispute as to their .qualifications to sit on the selection panel, since the Senior Designers reported directly to the Project' Engineers. Mr. Polson testified that the panel members selected the questions to be asked at the'interview. Of. the 11 questions, 9 were qUeStions which had been used in past competitions for Senior Designer positions. They decidedthat the interview should be worth 70 percent of the total marks for the competition. The other 30 percent was allocated to the supervisor's ratings, This format was approved by the Human Resources Branch. The interviews were conducted for six applicants,.using the questions prepared in advance. Prior to each interview, the panel members reviewed the application of the candidate. During the interviews each panel member noted the answers provided by the candidates on his or her own score sheet. After each interview was completed, the panel members individually scored each answer. There was no attempt to reach a consensus'on scores. After all the interview~were done and the scores recorded by the individual panel members, Mr. Poison.met with the supervisor of each candidate, and had the supervisor fill a "rating sheet" for the candidate. This sheet had five areal to be assessed by the supervisor, listed as A to E inclusive. These are: ~ (a) Employee's approach to work (I) cooperativeness with peers and supervisors. (ii) employee initiative. (b) Employee's punctuality and attendance. (c) Technical skills - ability to learn, understand and apply in an appropriate manner technical knowledge/skills. (d) (i) Interpersonal skills. (ii) Communication skills (e) Judgement/Decision making. The range of marks for each could vary from 10 for "good" and zero for "poor". Mr. Polson testified that after the interviewmarks and the supervisor's ratings were reviewed by the panel members, they reviewed each candidate's personnel file and~that performance appraisals on file were reviewed "in order to verify that the information provided .in the applications and the supervisor's ratings were~accurate". Mr. Polson testified specifically that with regard to the two grievors and Mr. Dillon, the panel members concluded that the 7 supervisor's ratings were comparable .to the performance appraisals on file. The most recent performance appraisal on file for Mr. Dillon was one rela~ing to his position as Intermediate Designer for the.period March 31, 1990 to November 27, 1990. The overall rating on this was that ~r. Dillon's "Performance consistently met and frequently exceeded job expectations". There is no doubt that it was a very positive appraisal of Mr. Dillon's performance as Intermediate Designer. In Mr. Liblik's file, the panel found a performance appraisal covering his acting assignment as Senior Designer from February 25, 1991 to August 31, .1991. It is also a positive appraisal. The Supervisor's comments read: Mr. Liblik has performed his duties 'and responsibilities very adequately as the Senior Designer. Mr. Liblik's design technical Skills have greatly · improved, as has his confidence in co-ordinating a work schedule. Mr. Liblik has shown good ability in directing a design group. Mr. Liblik has good work ethics and is a very dedicated and conscientious employee who always gives an excellent effort. ~ During his six month assignment in the design group, Len has functioned as an efficient Senior Designer. 8 Filed in evidence were two performance appraisals for Mr. Scripnek, one in his position as Intermediate Designer and the most recent covering his acting assignment as Senior Designer. Mr. Polson testified that neither of these appraisals were in Mr.~ Scripnek's file when the panel reviewed it. The evidence is that the Intermediate Designer appraisal was completed on July 8, 1991. There was no explanation as to why it had not been placed on file by September, 1991. Mr. Scripnek's Senior Designer appraisal was completed on SePtember 30, 1991, the same day the selection panel reviewed the personnel files, and had not yet found its way to Mr% Scripnek's file. In any event, what is clear is that the panel did not see these two appraisals. However, Mr. Polson testified that he asked the Senior Project Manager Mr. Doug Huddle,. who completed the supervisor's rating for Mr. Scripnek, "whether that rating he gave was accurate" and that Mr. Huddle stated that it was a "true reflection of Mr. Scripnek's performance appraisals". Mr. Scripnek's performance appraisal in the Intermediate Designer position covers the period July '1, 1990 to June 30, 1991. The overall rating is that his "Performance consistently met and frequently'exceeded job' expectations". The supervisor's comments are extremely positive and he · concludes with the comment'"I am sure that Bill is capable of working at the Snr. Designer level and should be offered one." 9 Mr. Scripnek's appraisal as Senior Designer covers the period April l; 1991 to September 30, 1991. The supervisor's comments againare very complSmentary and read: For the last 6 months Bill has been acting as a snr. Designer and fulfilled all the requirements of 'that position. He completed all the tasks assigned to him, while maintaining the schedules and coordinatingl the work of a design group. Bill proved during this assignment that he was more than capable of carrying out the duties of a Snr. Desiqner and should be considered for any future promotions to this' position. (Emphasis added) It is clear on the evidence that the selection panel assessed the relative qualifications and ability of the candidates solely.on 'the basis of the results obtained in the two segments of the ~competition process, i.e., the average score achieved in the oral interview (worth 70%) and the scores assigned in the supervisor's rating sheet (worth 30%). The scores assigned t0 Mr. Dillon, Mr. Scripnek and Mr. Liblik were as follows: IntervieW~Average. 'Supervisor's Ratinq Total (Out of 70) (Out of 30) Dillon 59.5 23.6 83.1 Scripnek 42~.1 24.0 66.1 Liblik 38,~.3 23oi 61.4 Based solely on the total scores achieved the 6 candidates were ranked. Mr. Dillon had the highest score and was ranked nUmber one. Mr. Scripnek was ranked number 3 and Mr. Liblik number 4. l0 Mr. Polson testified that on the advice of the Human Resources Dept. the selection panel used 10 percent as a bench mark for assessing relative equality. Since Mr. Dillon's -total score exceeded the grievors' scores' by more than 10 percent, they were deemed to be not relatively equal and Mr. Dillon was awarded the position. The union relies on Re Nixon 2418/87 (Fisher) as a case squarely on point. There the employer'awarded the position tO the incumbent on the basis of raw interview scores, and like here, considered a difference of more than 10 percent as indicative of' a lack'of relative equal statu~. The Board found that'it was appropriate for the employer to compare the relative scores of the candidates between themselves, but went on to state as follows at pp. 3-5: If this case were to end here, given the. Union's position that they were not objecting to the procedure, the Board would have been inclined on the basis of either a 15% or 18% spread that the parties were not relatively equal. However, the case does not end here because the selection committee failed to properly consider an extremely important aspect of this case, namely, the performance of the grievor .during a secondment. The incumbent, prior to Obtaining this position .worked in another Ministry in a clerical job but obviously one quite different to the.position that she ultimately obtained. The grievor, on the other hand, although he had a varied career in different jobs within the Ministry had performed the actual job in quest/on, on a six month secondment shortly before the competition. Furthermore, a supervisor of the' grievor, Mr. Nitch, produced a report for his supervisor, Mr. Houle, dated 1987/06/02 setting out an assessment of Mr. Nixon's performance while' on the secondment for the job in question. The assessment sets forth in detail the various and numerous tasks that were performed by Mr..Nixon during his secondment and although they do not encompass each and every aspect of the job, they certainly indicate that he performed a large number of the aspects of the Field Dual Clerk. In addition, the last paragraph of the memorandum contains this very favourable comment, "I found Mr. Nixon to be punctual, reliable and able to handle his work in a competent manner and would call on his services without hesitation if the need arose." .~Surprisingly. enough, the selection committee totally and utterly ignored this letter in assessing Mr. Nixon. In fact, the only consideration given by the selection committee to the fact that Mr. Nixon had performed the job in question for six months was that it qualified him to get an interview, but other than the fact that it may have assisted him in answering the interview questions, they gave no consideration to it whatsoever. Again, notwithstanding the numerous decisions of this Board telling a selection ' committee that part of the selection process is to interview the parties' supervisors, the selection committee chose only to conduct a reference check' on the incumbent and only after they had scored the interview. They specifically only contacted her supervisor in an effort to verify their finding that she was the superior candidate. Having reviewed the reference check on the incumbent, the best that can be said for it is that it is no better than the grievor's assessment. This Board finds that the failure of the selection committee to consider the assessment of Mr. Nixon in his secondment to be a serious matter and had thgy done so, like the Board has now been able to do, they would undoubtedly have realized that the difference in qualifications between the candidates was much less than would appear to be from a mere comparison of the mathematical difference between the interview scores. When one looks' at the entire picture, being the interview scores and the assessment of the grievor's performance on secondment, it is clear to this Board that Mr. Nixon was at least relatively equal with respect'to his qualifications and abilities to perform the job in question and since he had higher seniority than the incumbent, he. should have been appointed to the position, of Field office Dual Clerk at the time of the original competition. Similarly, reliance is placed on Re Hall/Powers, 716/89, 866/89, (Gorsky) where at pp. 18-20 the Board stated: There may be misgivings about tests based on their usually having been prepared by persons who have not had them Properly validated. That is, they are usually tests prepared by amateurs, albeit usually amateurs with knowledge of the qualifications.and abilities required to perform the duties associated with .the job. However, if those who prepare and administer the test meet certain criteria, tests have been given considerable weight in assessing qualifications and ability. See Brown and Beatty Canadian Labour Arbitration (Third Edition), at para 6:3340. Panels of the Board have not insisted that the creation, administration and evaluation of a test be an exercise in pe~fecti0n. At the same time, in looking for objective evidence which would assist a panel to evaluate the candidates' qualifications and ability, where the job posted is one where the candidates have had substantial ongoing experience, and where their performance of the job has been observed and reviewed by representatives of the Employer, the evaluation of the candidates' actual performance on the job.usually must be preferred to a test, especially where the .test of actual experience on the job conflicts with the more theoretical test. Unfortunately, the Employer in carrying out its responsibilities, although its representatives acted in good faith throughout, overlooked significant objective evidence concerning the qualifications and ability of the applicants. There was available to the Employer objective evaluations made by supervisors over a considerable 'period of time, of the functioning of the applicants in the very position that was the subject of thePosting.· They also had the means of obtaining oral assessments from supervisors. Only ten out of one hundred and fifteen marks were given to an applicant who had'obtained the status of a Correctional Officer 2. As far as can be determined, no attempt was made to evaluate the qualifications and ability of the applicants to perform the required duties and responsibilities of the position based on their actual performance of the Annex Correctional Officer job. On the evidence,, we must find that Mr. Hall not only~ performed the work of an Annex Correctional Officer extremely well when he was required to perform that job, but that~he was seen to do so by his supervisors. There was no suggestion that either of the other two applicants were evaluated on the basis of their on-the-job performance as being any better than Mr. Hall in terms of their qualifications and ability to perform the duties of the job. Nevertheless, we are asked to virtually ignore the reality of actual on-the-job performance in favour of an evaluation which awarded 87 per cent of the marks to the written and oral tests. The tests may indeed contain questions and requirements Which are job related. Howeveri unlike an evaluation of actual job performance, they are mainly a test of potential. In addition to the contention that the employer failed to consider relevant and reliable evidence as to qualifications and ability, the union also alleged that several of the questions used~at the interview were inappropriate and not reflective of the candidates ability and qualifications to perform the actual job. Employer counsel attempted to'distinguish Re Nixon and R_~e Hall/Powers, from the facts of this case. He points out that in those cases the Board had found that the employer had failed to give any consideration whatsoever to the evidence as to the grievor's actual performance in the posted position. Counsel submits that that was not the case here because Mr. Polson obtained ratings fromeach candidate's supervisor, that the ratings were based on the employee's p~rformanceto date, 14 and that the selection panel members satisfied themselves ~hat the supervisor's ratings were consistent with the performance appraisals on file. In other words, counsel submits that that expe~ience and the employee's performance in the posted position Were in effec~ considered by the selection panel when they took into account the marks assigned in the supervisor's rating sheets. On the basis of the evidence, the Board cannot agree with employer counsel. In fact the evidence leads to a contrary conclusion. The evidence indicates that Mr. Scripnek had worked in the Planning and Design office as an Intermediate Designer since 1968. Mr. Liblik held that position from 1958 to 1966 and after a break, again from 1970 to the present. In addition, each grievor had performed as S~nior Designer on 6 months acting assignments not long before the competition. All the evidence suggests that the grievors performed competently in both positions. During Mr. Polson's cross- examination Mr. PolSon agreed that both grievor's had significant experience as a result .of their long years ~f service as Intermediate Designer and their acting assignments as Senior Designer and that that experience was relevant in considering their applications for thePosted position. Then the following dialogue occurred between union counsel and Mr. Polson: 15 Q. In assigning marks you gave 70%'for the oral interview and 30% for the supervisor's ratings? A. Ye~. Q. There were no marks assigned.for relevant experience? A. No. Q~ Therefore the fact. that Mr'. Liblik and Mr. scripnek had worked in the design office for years was not relevant? A. We felt that the questions we .asked should bring out their knowledge. With the questions we were drawing the knowledge. Q. You didn't give any marks for experience at all? A. No. This was discussed with Human Resources and the head of Planning and Design. Q. Your understanding was that any experience will be caDtured by the interviews? A. Yes. Nine employees applied. We interviewed six who we felt had the adequate experience. From there on we felt everyone was the same. Q. But -here you have two designers with over ,10 years experience and very good performance appraisals.' Didn't you worry about their low marks? A. We believed this was the best method to .rank the applicants. Q. Didn't 'you think it was odd that Liblik and Scripnek. scored low given their experience and excellent references? · A. We felt the answers indicated what they could do under pressure. In our view the foregoing evidence establishes that the employer did the following. First, it considered that a minimum level of experience was required before an applicant was given an interview, Once over that hurdle, all those selected for interviews were on equal footing regardless of the extent of their experience. Secondly, the employer did 'not give any credit to relevant employment experience, except in so far as that experience may assist' the employees to answer the questions asked at the oral interview. That was exactly what the emplOye~ had done in Re Nixon (supra) and the~ Board disapproved .that. casual treatment of relevant experience. Employer counsel's distinction between Re Nixon and Hall/P0wers and the facts before us is superficial. It is technically true that here the panel did consult with the candidates' supervisors. However, what the supervisor did was assign marks on a questionnaire-like sheet to specific employee qualities set out therein. These areas, for most part deal with work ethics and'attitudes of a general nature. The only possible exception is item c, which in full reads - "Technical Skills. That is: The Ability to learn, understand and apply, in an appropriate manner technical knowledge/skills". Since the suDervisors who filled out the rating sheets did not testify,.it is not at all clear whether the grievors' actual performance of the duties in the Senior Designer positionto any extent formed a basis of this rating. Mr.'Poison confirmed during his examination-in-chief that the supervisor's rating process assessed, and was intended to assess, only general' work habits. When employer counsel showed him one of the rating sheets and asked him to describe what the supervisor did, Mr. PolSon said "The supervisor' reviewed each question here. They are all general questions outlining day to day attitudes and work ethics. The supervisor~ did this on September 30. So they considered the employees' performance right upto September 30". We cannot understand how the selection panel could have come to a conclusion that the supervisor's ratings were comparable to Mr. Liblik's and Mr. Scripnek's performance appraisals. In the first place, they never saw Mr. Scripne~'s performance appraisals. In any event, performance appraisals evaluate an employees performance of particular duties in a particular position during a given period. The ratings are general assessments of work ethics and' habits. They are not comparable. 18 It iS in any event difficult to accept employer counsel's contention that the supervisor's rating.~ for Mr. Scripnek reflects his performance in the senior Designer position. The supervisor's .rating sheet for Mr. Scripnek was completed by Mr. Doug Huddle, the Senior Project Manager. The performance appraisal for Mr. Scripnek in the Senior DeSigner position (as well as the one for the Intermediate Designer position) was completed by Mr. Scripnek's immediate supervisor, Project Manager Mr. Gerald Chaput. It is true as employer counsel pointed out that Mr. Huddle also 'signed that performance appraisal. However, he was not Mr. Scripnek's direct supervisor. He did not do the performance evaluation. Mr. Chaput did that and signed the document as the supervisor. Mr. Huddle only signed in a space titled "Reviewed by' next highest level of management". Mr. Polson testified that by the time the competition took place Mr. Chaput had moved to another section and therefore, Mr. Huddle, who during Mr. Scripnek's acting assignment, was Mr. Chaput's immediate supervisor was asked to do the supervisor's rating.' However, there is'no evidence before the Board that Mr. Huddle, as a senior manager, had any knowledge of Mr. Scripnek's day to day performance during the acting assignment. Nor is there any evidence that Mr. Huddle used the performance appraisal · completed by Mr. Chaput as a basis for completing the superviSor's rating, for Mr. Scripnek. Even if the Board treats the technical skills question as an assessment by the supervisor of the .employees qualifications and ability to perform the senior Designer duties, the ratings indicate that for that particular question3 Mr. SCripnek was assigned 8 out of 10 marks, and Mr. Liblik and Mr. Dillon each scored 7 out of 10, In other words, the supervisor's ratings indicate that Mr. Liblik and Mr.'Dillon were equal in technical skills, while Mr. Scripnek was superior to both of them. The Board finds no merit in the union's contention that the interview process itself was flawed. The questions may not have been perfectly framed, but the' Board ·has never imposed a standard of perfection inr a competition process. The questions asked were reasonably relevant and marks were · aSsigned in a fair handed manner. As the Board has stated on many previous decisionS, the. employer is entitled to conduct interviews and/or tests to assess the candidates' relative qualifications and abilities to perform the duties.in a posted position. Where the employer has no evidence before it, which is more reliable than the performance at. the interviews, it may have no choice but to rely solely on the interview scores. .However, where' some candidates have actual employment experience, particularly in the posted job itself, the evaluation of their performance on the job must usually be preferred to the interview results. At the very least, that must ~be given serious consideration in the overall assessment of the employee's qualifications and ability to perform the duties of the posted position We are satisfied that the employer acted in complete good faith in conducting this competition. However, we are \ convinced on the evi'dence~before us, that it gave little or no~ consideration to the experience and actual job performance of the candidates. We find that the supervisor's rating sheets were not, and were not intended to be, a true assessment of actual job performance-in the Senior Designer position. In Mr. Scripnek's case, there is no evidence indicating that Mr. Huddle, who did the supervisor's rating, had any knowledge of Mr. Scripnek's day to day job performance during the acting assignment. The supervisor's ratings deal mostly with general work attitudes and ethics. If we accept the question on technical skills as .indicative of the employees' ability and qualifications to perform in the posted position, Mr. ScriPnek outscored Mr. Dillon in that particular area and Mr..Liblik's score was the same as Mr. Dillon's. The Board finds that the selection panel gave no consideration to'the two grievors' years of'experience in the Planning and Design office or the experience they had gained by completing their '6 month acting assignments in the posted position.. Mr. Dillon did not have related experience to that extent. Nor had he completed his acting ass~qnment. Unlike the grievors, Mr. Dillon's performance, in the~short period in the Senior Designer position had not been formally evaluated. In contrast, a representative of the emPloyer had very favourably evaluated the grievors' performance in the posted position. Mr. Scripnek was expressly recommended for a promotion to the posted Position. The evidence indicates that all of this was totally ignored by the employer. Based on all of the evidence, the Board is convinced~that when the employees' experience and the assessment by their respective supervisors'- ~of actual job. performance are considered, both grievors demonstrate that they are relatively equal in qualifications and ability to Mr. Dillon. Sinc~ they have significantly more seniority than M~. Dillon, the employer was in contravention of article 4.3 by awarding the position to-Mr. Dillon. On the basis of the evidence, we also find that Mr. Scripnek and Mr. Liblik have qualifications and abilities which are relatively equal vis-a-vis each other. In the circumstances, as the more senior applicant, Mr. Scripnek should have been the successful candidate. Therefore, both grievances are allowed to the extent that the employer appointed an employee with less seniority. However, only Mr.~Scripnek is entitled to any remedial order. The employer is hereby.directed to appoint Mr. Scripnek to the position of Senior Designer effective the date on which the incumbent was appointed to that position. Mr. Scripnek is entitled to be compensated for all wages and benefits lost from that date to the date he is awarded the position pursuant to'this decision. The compensation shall include interest calculated in accordance with prior decisions of this.Board. The Board' retains jurisdiction in the event the parties have any Problems in determining the quantum of compensation or in otherwise implementing this decision. Dates this 1. gth day of November,1993~ at Hamilton, Ontario N. Dissanayake Vice,Chairperson E. Seymour Member "I' Dissent" (dissent attached) D. Halpert Member Grievance Settlement Board GSB 2525/91 Between OPSEU (Liblik/Scripnek) and Ministry of Transportation Dissent of D. Halpert , I have read the above noted majority award and, with respect, I must dissent. I will outline my reasons with a discussion of the Collective Agreement, the Selection Process, the Selection Outcome and the conclusion I would have reached. The Collective Agreement · Article 4.3 reads:. "In filling a vacancy, the employe~ 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." This is clearly a competitive clause providing that where qualifications and ability are relatively equal length of service becomes a consideration. The clause gives primacy to qualifications and ability. GSB 2525/91 OPSEU (Liblik/Scripnek) and MOT The question of what is meant by "relatively equal" is dealt with by Arbitrator R. Verity in Couture, GSB 967/89, p. 19: "The onus is on the grievor to establish,relative equality within the meaning of the Collective Agreement. The expression "relative equality" has been considered in a number of arbitration awards. For example, in Great Atlantie and Pacific Tea Company of canada Ltd. (t979), 21 L.A.C. (2d) 444 (Weathefill) the arbitrator explains the concept at p. 447: In Re Lady Gall Towels Ltd. and Textile Workers Union (1969), 20 L.A.C. 382 (Christie), the Board adopted the view that the test of."relative equality" is really one of determining whether or not one employee is more qualified than another by a "substantial and demonstrable margin". We would agree with this, subject always to the qualification that the determination is to be made having regard to the particular job in question. While we imagine that difference between employees must always be "demonstrable" if they are to be relied on, the notion of what is a "substantial" margin of difference is, like the notion of "relative equality" itself, one which calls for judgment in relation to the relevant circumstances. While a small difference between individuals might not be substantial or significant with respect to some unsMlled job, a small difference could well be substantial and significant in relation to a more complex task. It is a matter of judgment, and, at least under the collective agreement before us, that judgment is to be exercised in the first instance by the company" (Bold added) In. the same decision Verity,.p. 17 in discusses the issue of the competitiveness of the process: "It must be emphasized.that this is a competition and accordingly the questions must reflect that fact. The quality of the answers given will depend in large measure on the extent an applicant's review of the relevant material and the general level of preparation. It is difficuI[ to understand why the grievor' would not have taken advantage of the opportunity to ---" (better prepare for the interview) The job of Senior Designer in the Ministry's Planning and Design Section is a complex one requiring qualification and ability far beyond seniority. The gfievors were not as well prepared as Mr. Peter Dillon,~the successful applicant. The onus was on the grievors to clearly demonstrate their superior qualification and ability, not merely assert their length of continuous service. 2 GSB 2525/91 OPSEU (Liblik/Scripnek) and MOT Selection Process Mr. Ken Pols°n, chaired the Selection Panel which included two other Project Engineers. They were clearly qualified to make the decision. This is apparent to the majority,(p. 5). The questions were prepared in advance. Ali interviewees were asked the same questions, all ofwltich were relevant to the job. This was confirmed in the cross-examination of the grievors. Scripnek testified all qUestions were relevant to the job, although he had some difficulty with Question 6. Libl/k did not appear to think that question was unrelated to the job. The union alleged that several of the questions used were inappropriate or not reflective of the candidates ability and qualification,, but I fmd no evidence of that. Following the interview the applicants were rated on criteria listed on p. 6 of the .award. The majority finds no merit in the union's contention that the interview process.was flawed, (p. 19) and concluded that the .employer acted in complete good faith in this competition (,p. 20). With regard to a review of the Personnel files and recent performance appraisals, I am satisfied this was' considered in the process by means of discussions with current and prior supervisors. The fact that appraisals completed at the conclusion of their 6 month acting assignments may not have ' been part of the decision process is not, in my opinion, a major factor. I believe the employer gave credit to relevant experience through discussions with supervisors and the related questions in the interview itself. · Selection Outcome Where the process if not flawed and the employer has acted in good faith, Arbitrators have been loath to intervene in the decision of the Selection Panel. 3 GSB 2525/91 OPSEU (Liblik/Scripnek) and MOT It would be inappropriate to replace the decision of the resident management with that of an Arbitration Board except in cases of a clear violation of the Collective Xgreement, bad faith or a major flaw in the process. This is especially important where the jobs are technically comPlex. The Arbitration Board has. little knowledge of the job, ,no exposure to the other applicants and only a cursory understanding of the work environment. Conclusion The scoring resulting from the interviews demonstrated that Mr. Peter Dillon :was clearly superior to the Grievors in qualification and ability. Given the competitive language in Art. 4.3, the process and the appropriate criteria under which the decision was made, I would have denied the grievance. D..HALPERT ..MEMBER November 12, 1993