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HomeMy WebLinkAbout1993-1677.Anderson.99-03-02 ~/~' ONTAFlIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONrARIO GRIEVANCE COMMISSION DE , 1111 SETTLEMENT REGLEMENT BOARD DES GRIEFS t80 DUNDAS STREET WES7; SU1TE600, TORONTO ON M5G tZ8 TELEPHONEfTELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 800, TORONTO (ON) M5G tZ8 FACSiMILErrELECOPIE (416) 326-1396 GSB #1677/93 OPSEU #93G287-294 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Anderson et al) Grievors - and - The Crown In RIght of Ontano (Mimstry of Fmance) Employer BEFORE Nimal V Dlssanayake V lce-Chair FOR THE Ra] Anand GRIEVORS Counsel WeIr & Foulds Barnsters & Sohcltors FOR THE Davld Strang EMPLOYER Counsel, Legal ServIces Branch Management Board SecretarIat HEARINGS June 5, 1995, October 22 and 29, 1997, January 16 and 27, 1998, February 3,1998, Apnl1, 1998, November 24 and 25,1998 J ~. 2 DECISION This decision deals with grievances filed by nine candidates who were unsuccessful in a restricted jOb competition for positions titled "Senior Corporate Tax Auditor, Field", at the Corporations; Tax Branch, classified as Financial Officer 5 (" F05" ) The posting was dated May 14, 1993 with a closing date of June 4, 1993 Approximately ~8 applications were received for t~e 10 vacancies, seven at the North York office and 3 at the Oshawa office Following a competition process, the. following 9 individuals were appointed (Hereinafter referred to as "incumbents") K Brooks L Herskovits D Duhig M Longden M Fouks R Mantle R Francella C Verre D Hayashi Grievance~ were filed by ~pe following nine individuals J Anderson Y Nazareth W Dove S Ratansi S Kong L Roy M Ladha M Weaver R Lockett The Board has satisfied itself t0at all of the incumbents received , proper notice of this proceeding These grievances first came before the Board on June 5, 1995, together with two other grievances filed by Mr M Ladha (GSB files 0833/93 and 2394/93) Following discussions between the union, the employer and all of the incumbents present, [ Fouks, Hayashi, Herskovits, Longden, Verre, and Francella (represented --- - - -------- ~- 3 by Mr W J Wysoeky) J, it was agreed that these 9 jab competition grievances would be severed from Mr Ladha's other two grievances The agreement reached was recorded in a decision of the Board dated June 8, _ }' 1995 as follows Following discussions among all of those present the following agreement was reached (1) The Board consisting of myself as Vice-Chait person will hear Mr Ladha's individual grievances (2) At the conclusion of the heari.ng of the' Ladha .individual grievances, the Board will issue its award (3) The Board will be entitled to apply the findings in the Ladha individual grievances to the Anderson et al job competition grievances (4) In the job competition grievances, the incumbents will be entitled to argue the relevance, if any, of the Board's findings in the Ladha individual grievances Mr Ladha's other two grievances, one alleging harassm~nt by members of management and the other alleging improper performan~e evaluation, were heard over 21 hearing days and a decision dismissing both grievances was issued on March 20, 1998 I At this proceeding, all of the incumbents who attended were given full party status Some attended regularly, and some iqtermittently Others did not attend at all On some days Mr Francella was represented by Mr Wysoeky Those incumbents who attended participated to varying degrees ..' 'a~ ~ 4 The union called two witnesses, grievors Ratansi and Lockett The employer called Mr Martin Kenny, a member of the three person selection panel that conducted the competition in question None of the incumbents called any evidence The crux of the uni9n's case on behalf of the grievors .is that the comp~tition process was fundamentally flawed in a number of ways that its results are not reliable By way or remedy, it sought an order that the competition be re-run between ~he incumbents and the grievors before a differently constituted selection panel While the parties had agreed that the Board will be entitled to apply the findings in its decision in the Ladha individual grievances to these grievances, the parties hardly made any reference to that decision in their submissions in this matter I also find that the Board's findings in that decision are of no relevance to the issues in these grievances, and no reliance has been placed' on the same ~ Mr Martin Kenny's testimony Examination-in-chief Mr Kenny testified that he joined the Ministry's Corporations Tax Branch in 1984 as a field auditor At the time the Branch was located in Oshawa, Ontario and consisted of 2 units, Unit 'E' and Unit ' H' In 1986 there was a reorganization Df the Branch with the introduction of an additional level of managemen1: (Group Managers) between the manager 1 ~~ 5 and the field auditors Thus each unit had Field Auditors (Classified as F04) and Team Leaders (classified as FOS) reporting to a Group Manager, who in tUrn reported to the Manager In 1986 Mr Kenny became a Team Leader in Unit 'E' through a competition As part Df the 1986 re- organization an additional field audit unit, Unit 'J' , was established and a number of competitions were held to staff it In 1987 Units 'E' and 'H' were reloCated at Queen's Park in Toronto From there, in 1985 those 2 units moved to North York Around the same t!ime the Branch opened an office in London, Ontario In September 198 9, Mr Kenny was promoted as a Group Manager in Unit 'H' Mr Kenny testified that as a result of these organi,zational change s , there was significant movement of auditors as well as managers between units and offices The Field Auditor and Team Leader positions were within the bargaining unit Group managers were not The working level at the Branch was the F04 classification, referred to as Field Auditor Field Auditors were required to possess an accoun t.ing d~signation and i experience in corporate auditing The next higher level was the FOS Team Leader position A Team Leader was expected to have, the same qualifications and, experience as a F04 Field Auditor, but had certain additional team leader duties This. included the reviewing. of files assigned to Field Auditors, providing advice, assistance and direction to Field Auditors in the team, and providing reports and a?vice to senior management Team Leaders were considered to be experts and were assigned complex audits -6;- ;:, 6 Mr Kenny testified that the job posting in que~tion resulted from an announcement by the Minister of Finance of an initiative to combat tax evasion called the "Fair Share Program" As part of this, 3 new audit units were created Three additional Group Managers and, 6 Team Leaders were hired for the program Mr Kenny testified that the Fair Share Program has since been wound up and replaced by other programs The staff hired for the Fair Share Program continued to be employed ln various units of the Branch When asked how the selection panel for thi's competition was appointed, Mr Kenny replied that the three group managers in the Fair Share Program were simply assigned to the panel Mr B Mbhamad had been assigned as Fair Share Group Manager in Oshawa at the time, and Mr Kenny and Mr Ron Young were Fair Share Group Managers in Unit 'E' in North York They were given the responsibility of hiring the F04 and POS staff for the program, training them and monitoring their progre~s Mr Kenny stated that it was intended that of the 10 positions, 6 of the appointees will work in the Fair Share Program Mr Kenny testified that the three panel members (Mohamad, Young and himself) decided to follow the precedent set in prior ~ompetitions by having a written test and an oral interview They agreed upon the type of questions Subsequently each drafted questions, discussed and made revisions to them They reviewed the marking keys and carne up with the final product They forwarded the questions and marking keys to their ~ - -- 7 managers for review, and also received advice from the Human Resources staff When the competition closed, the panel screened all of the applications received Each application was marked on the basis of pre- determined screening criteria The total marks given by the 3 panel members was divided by 3 to establish each candidate's mark on the screening Those who met the pre-set cut-off mark ',.;ere allowed to proceed with the interview and the written test Mr Kenny stated that all FO 4s who had applied and two or three others got past the screening The written tests were conducted first A date was established for the test Candidates were allowed to do the test at North York or Oshawa For the oral interview, the candidates were giver a choice of dates over a period of l~ weeks, some in North York and some in Oshawa Interviews were held almost continuously and were completed in the l~ week period Mr Kenny testified that each panel member attempted to record the gist of each answer given at the interviews Then each independently marked the written tests as well as the oral interviews For each candidate, the marks assigned by the 3 panel members for each question on the written and oral tests were added up, and then divided by three That gave each applicant a written test mark and an interview mark Based on the total of these two marks the candidates were ranked ~ ~ 8 Mr Kenny testified that in using the marking key the panel had established, he did not look for the exact words in the marking key He had to exercise judgement as to whether the candidate had provided the essence of the expected answer He testified that each question in the ; written test was assigned a maximum of 15 marks Some questions had a pqssible 20 marks, which meant that candidates could score the maximum of 15, even if they had 1/4 of the points wrong Mr Kenny said that the panel also decided that some questions should have n~gative marks, because some questions had basic and fundamental points the candidate ought to get right If that point was answered wrong, the candidate was penalized with 1 or 2 min~s marks Negative marks from one question did not affect marks earned on other questions Mr Kenny agreed that employees under his supervision in Unit 'H', as well as some F04 auditors whose work he had reviewed in his prior position as Team Leader in Unit 'E' were among the candidates However, he did not push the candidacy of any applicant Nor did ~r Mohamad or Mr Yqung try to influeqce him in any way Mr Kenny was questioned about a particular question ~n the written test referred as the "Terry Smith question", which required the candidate to write a memorandum in the capacity of a Team Leader to an auditor who resented the fact that his work was being reviewed He denied that the question was intended to reflect the actual circumstances between himself and one of the grievors, Mr M Ladha According to him, when the panel , 9 decided to have an essay-type question to test the candidates' writing skills, Mr Mohamad told them that he knew that a Group Manager l.n Oshawa, a Mr Franklin, had used such a question in a competition at the London Office When Mr Mohamad produced that question from London (known as the "Terry Tirnbrell question") the selection panel made certain changes to it and came up with the Terry Smith question The goal was , to ascertain the candidate ability to write a memorandum in terms of the structure, content, style, punctuation, grammar etc , in circumstances : where the auditor re~ented his work being reviewed When asked if this was an unusual situation, he said that as professionals, most auditors do not like their work being reviewed, and a number of them had expressed I concerns about their work being reviewed Cross-examination by Mr Herskovits Mr Kenny was referred to a memorandum dated July 15, ,1993 from Mr Young to Ms L Marston of Human Resources, titled "Personnel Files for FO 5 Competition" It reads "Lois, the following is a lis~ of the potential candidates for the FO 5 position for which we wish to check the personnel files as per memo (List of 19 names omitted) Bashir and myself will be in Oshawa on Tuesday July 20 th, to review the files if available \ \ Mr Ke'nny noted that the 19 names were of the 9 success ful candidates and "those who were close" When asked whether Mr Young and Mr Mohamad --- -- ~ .;, 10 reviewed the files of those 19 employees, Mr Kenny said "As I understand they did" Mr Kenny was also referred to a document which listed the scores and ranking of the top 13 candidates in North York and the top 10 candidates in Oshawa Pointing to 2 footnotes set out in the document, Mr Kenny testified that they indicate that "Eecause of relative equality Mr Longden would get it over Mr Hayashi on account of seniQrity and that Mr Montle was senior to both Mr Hayashi and Mr Longden" When asked what the cutoff was for relative equality, Mr Kenny replied "It was relative equality We didn't have a mark specifically as such" Mr Kenny agreed that incumbents Fouks, Francella, Duhig and Herskovits, as well as grievors Ladha and Nazareth had worked under h.ils supervision prior to the competition When asked how he would evaluate the work those 4 incumbents had done for him over the years, Mr K~nny said, As best as I recall their performance appraisals were above average" He describedMr Ladha's appraisals as "average" and could not recall about Ms Nazareth's appraisals Cross-examination by Union Counsel j At the cormnencement of the cross-examination, it was stipulated by agreement of all of the parties that as of the date of the posting, 7 of the 9 incumbents were in Unit 'H' and therefore under the direct supervision of either Mr Kenny or Mr Young Out of the 9 grievors, Mr ~ .1 11 Ladha and Ms Nazareth were in the same position The other 7 grievors carne from units other than Unit 'H' Mr Kenny agreed that he coul<;i not recall any prior competLtion where a test contained negative marking He also conceded that the candidates I were not informed that some questions in the test had negative marks, and that they may have only discovered that years later However, Mr Kenny disagreed with the proposition by union counsel that that information was > important to candidates because then, if they were not sure of the correct answer, they sould have decided to not answer rather than risk getting negative marks by guessing wrong He said that depending on how unsure a particular candidate was about the correct answer, the chance I of gaining positive marks may outweigh the risk of being penalized by negative marks for a wrong answer Counsel used as an example the following question in the written test # Question #1 Attached are copies of selected field audit workiqg papers prepared by a field auditor of the corporations Tax Branch during the course of an audit The working papers are NOT related to each other As a Senior Field Auditor performing a review of the working papers, please explain for each working paper a) Whether the audit work performed is adequate or nqt, ~ j. 12 b) Any additional audit proceciures that should be performed, explaining the purpose of each audit procedure, c) Whether the audit conclusion is correct or incoi:"rect, and explain why, d) Any additional required adj ustm.ents or lssues not considered Mr Kenny agreed that the test gave no indication to the candidates as to how the maximum of 15 marks was distributed betweenl parts a, b, c , and d He agreed that for part (c) , the right answer was "incorrect" It was pointed out to Mr Kenny that as per the marking key the panel had used, if a candidate had given the wrong answer by saying the audit conclusion was "correct", he/she would get 2 negative marks, but if he/she had given the right answer, that would not earn any points It was suggested that a candidate should be able reasonably expect some marks for giving the right answer Mr Kenny explained that a candidate was penalized with negative marks if he/she got a funqamental point wrong However, he was not credited any positive marks for, merely giving the right answer, by saying that the .audi t conclusion was incorrect without expl~ining why it was incorrect Marks were for the reasoning and not for merely the right answer He agreed that i,f a candidate received -2 for part (c) , he stood to lose 2 marks he had earned in parts I (a) (b) or (d) Mr Kenny was asked about the role seniority played in the selection process The following exchange ensued Q How was seniority taken into account? ~ ~ ~ " 13 A We looked at the continuous service of the other empioyees and ranked them We looked at their scores and determined whether any of them were relatively equal to the successful employees your definition of relatively equal? i Q What was A If they were within a pre-determined range of marks or percentage Q What was that? A I don't remember Q Did you use a percentage? A I don't recall Q Was relative equality discussed? A Yes Among the Board members and with bne Personnel Branch I Q Who did you discuss with in Personnel? A Lois Marsden Q What did she say? A That there was no specific number That it depended on each position based on GSB decisions In more technical jobs the range can be smaller When we looked at it, it turned out it wasn't a factor Union c:ounsel lised the competition scores and cross,-examined Mr I Kenny as to whether the panel considered particular candidates to be relatively equal Mr Kenny stated that grievor Ratansi who had scored only 9 5% less than incumbent Brooks was considered not rel'atively equal to Brooks Then the following ensued Q Why not? A Because we felt he was not close enough The spread of marks was t90 much ------ ~ ~ -- 14 Q What ~s too much? A We didn't use a specific percentage I think we looked a.t raw scores ) Q Isn't it the same? \ A All I can say is we looked at relative equality I don't recall what number we used We just looked at the scores and decided that Mr Ratansi was not relatively equal to Mr Brooks Q What did you use to decide that? A We didn't use 10% as relative equality We looked at the scores and considered whether they are relatively equal Mr Kenny was asked whether there was any discussion between the 3 panel members, as to the possibility of bias arising from the fact that all three of them were, or recently had been, group managers in Unit 'H' , and therefore had supervised some of the candidates Mr Kenny replied that there was no such discussion Mr Kenny was certain there was no bias because the 3 panel members were professionals No consideration was therefore given to taking precautionary measures such as asking candidates to not write their names on the written tests Counsel referred to one question in the oral in terviel,.j worth 15 marks, where the correct answer according to the key had 11 points Mr Kenny testified that there was no discussion between panel members as to how the 15 marks were to be allocated to the 11 points There was no weighting of each point -~~ ------ ~ <- IS About the Terry Smith question, Mr Kenny reiterated that it was Mr Mohamad who found the question from a previous competition held in London That test in London, containing the original Terry T irnbre 11 question was filed in evidence Mr 'Kenny conceded that the fact , situation in the Terry Smith question included some issues which were similar to the issues he had recently been addressing witn regard to Mr Ladha's work performance However, he insisted that the question was based on the question used previously in London with some revisions He said that he would be surprised if any other employee knew about criticisms he had made about Mr Ladha's work performance because they certainly did not hear about that from him Mr Kenny admitted that he did not review the personnel files of any of the candidates However, his understanding was that Mr Kenny and Mr Mohamad had done so Mr Kenny agreed that he was ,not able to say whether any reference checks were done for candidates other than the incumbents He did not see any material indicating that anyone else did so Mr Kenny stated that Mr Young and Mr Mohamad were entrusted with the task of doing reference checks and he could not recall any discussion as to whether reference checks should be done for anyone other than the incwnbents Mr Kenny did not do reference checks for any of the candidates He ag.reed that some of the incwnbents who were in Unit 'H' had listed ~ 16 himself, Mr Mohamad or Mr Young as references and conceded that he actually provided references for some of them Re-examination of Mr Kennv ,- Mr Kenny stated that out of 16 to 17 selection panels he had sat on, including 7 for FO 5 positions, he could recall only on'e which had a Human Resources person on the panel Reviewing his score sheet, Mr Kenny stated that of the 9 grievors, Mr Ladha was the only person INho received a negative mark from him The union's evidence The union called 2 grievors Mr Shiraz Ratansi and Ms Rosilande Lockett, the two highest scorers among the 9 grievors Mr Ratansi was ranked 21st and Ms Lockett 26ch Mr Ratansi was 9 5% behind the lowest ranked ( 9 Ch) incumbent Mr Brooks The evidence of these two witnesses was not contradictory in any material respects to Mr KennY's testimony set out above I will not repeat that evidence However, Mr Ratansi spent a lot of time testifying about an exercise he went through, whereby he remarked his own written test and oral interview After that remarking, he gave himself the number 3 ranking in the competition I will not detail the remarking process he described, but simply note that it was not probative of anything useful It merely confirms the evidence that there were instances where the same answer by a candidate elicited different marks from the three markers ~ ., .. I 17 Under cross-examination, Mr Ratansi agreed that since the questions w~re not of the multiple choice variet], and since the questions pertained to a sophisticated position, the markers had to evaluate' and exercise judgement in marking an answer He agreed that one m~rker may be more generous than another, and that as long as the level of generosity or strictness i~ applied ~dnsistently to all candidates, ther$ was no reason to complain He agreed that he had no reason to believe that such consistency was not applied Mr Ratansi testified that he found out that some questions had negative marks, and that in other questions one could get full marks by getting only 3/4 of the points correct, only during a "post-mortem" he had with the selection pc;nel members after the appointments had been announced He said that if he had that information at the time, he would have approached the questions with negative marks I . taking differently, I precautions to avoid getting negative marks He would also, have done the questions with easy marks first He agreed under cross-examination that since no one had that information, all of the candidates we~e in the same position as he was in this regard Ms Lockett's evidence was mainly focussed on the' Terry Smith question She compared that question with the Terry Timbrell question from the previous London competition The gist of her evidence was to the effect that while there were similarities between the two questions, the focus .of the Terry Smith question was dlfferent --- ----- --- " , ., < 18 The position of the part!es The union alleged that the competition in question 'N'as flawed in seven different ways, the culminative effect of which was I to render the results unreliable and meaningless The alleged flaws were in the following areas ( 1) The composition of the selection panel (2) Failure to review personnel files (3) Failure to check references for all of the candidates (4 ) Various criticisms of the marking, scoring scheme and answer keys (5) The inconsistency of the marking of the oral interviews due to the subjective nature of questions and the failure to breakdown the mark allocation to various parts of a question ( 6) Failure to give adequate consideration to relative equality and seniority (7 ) The adverse impact the Terry Smith questi9n had on grievor Mr Ladha because the fact situation resembled actual events between himself and Mr Kenny The union submitted that the Board should declare that the employer had breached the collective agreement and direct that the competition be re-run by a differently constituted panel, between the grievors and the incumbents who continue to be interested --- 0- < 19 The employer's primary position was that there were no significant flaws in the competition process that amounted to a breach of the collective agreement With regard to review of personnel files and reference checks, I was urged to infer that the proper process was followed If I was not inclined to do so, the Board 'would be left without any evidence as to whether or not Mr Mohamad and Mr Young had done those tasks In counsel's vieftl , since the onus of proving a violation was on the union, if there was no evidence on those issues, the union's case must fail Mr Herskovits and Mr Wysoeky (on behalf of Mr Francella) also made submissions They generally supported the employer's primary position that there were no significant flaws and that the unlon had failed to prove that any flaws that existed had any adverse impact on the grievors Mr Wysoeky submitted that since the union bore the legal onus, it had the obligation to call. Mr Young and Mr Mohamad to establish that they / had failed to follow the appropriate procedure ! The Decision The governing provision of the collective agreement, article 4 3 1 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, seniority shall be the deciding factor , 1 20 First, this provision requires that the employer properly assess the t qualifications and abil,i ty of each appli.cant to perf0rm the required duties of the posted job Second, it requires a process of comparing the qualifications and ability of the applicants in order, to determine whether they are relatively equal, for purposes of applying seniority as the deciding factor The Board in a long line of cases has articulated certain standards for carrying out a proper assessment of qualifications and ability In Re Quinn, 9/78 the Board stated that the employer must employ a process of decision-making designed to consider the relative qualifications and ability of the candidate in a competition which will ensure that sufficient I relevant information is q.dduced before the decision-'-makers in order that they may make their comparisons in the confidence that they are able to throughly and properly compare the qualifications and abilities of the competing applica~ts And also that The be designed elicit in i, process must to a systema~lc mahner sufficiently comprehensive information about each applicant relevant to the qualifications and ability required to perform the job ln order that af air and reasonable assessment of the relative strengths of the candidates can be undertaken and the final section made In Re Maclelland/De Grandis, 506/81 (Samuels) at p 25, the Board set out the requirements as follows The jurisprudence of this Board has established various criteria by which to judge a selection process I ~ 21 1 Candidates must be evaluated on all the relevant qualifications for the job as set out in the Posl.tion Specification 2 The various methods used to assess the candidates should address these relevant qualifications . ;: as is J.nSOLar possible For examp le , interview questions and evaluation forms should cover all the qualifications 3 Irrelevant factors should not be considered 4 All members of a selection committee should review the personnel files of all the applicants 5 The applicants' supervisors should be asked for their evaluations of the applicants 6 Information should be accumulated in a systematic why concerning all the applicants However, the Board has not applied these requirements technically and has not insisted on perfection on the part of the employer I In Re 'Saras, 457/85 (Swan) at p 9, the Board observed The Union was able to point to a n).lITlber of flaws in the selection process in this case, but as counsel for the Employer rightly observed, it is possible to pick holes in almost any p~ocess run by mere mortal human beings In upholding the competition process, ~he Board stated at p 13 \ while we may not be happy with everything that happened in the course of the selection, we have come to the conclusion that the process as a whole was not unfair nor was it calculated to lead to an unfair result We have also concluded that on a somewhat larger body of evidence placed before us at the hearin:g, and on an objective basis Ms 0 was in fact better qualified for the specific job at issue than was the grievor . ~ w 22 The Board must review the evidence and determine whether there were any flaws in this competition process, and if there were, whether as a - culminative result of those flaws, it prevented the decision-makers, from having before them sufficient relevant information "in order that they may make their comparisons in the confidence that they are able to throughly and properly compare the qualifications and abilities of the competing applicants" (Re Quinn, supra) Was the competition process flawed (1) The composition of the selection panel It is common ground that of the 3 panel members, Mr Kenny and Mr Young were group managers in Unit 'H', and the third member, Mr Mohamad, had been a group manager in Unit 'H' until approximately one year prior to the competition Employees from various un~ts applied for the posted positions All of the successful candidates had connections to Unit 'H' L 7 were in Unit 'H' at the time of the competition, while one had moved out of Unit 'H' a year before the competition, and the .other 2 years before Only 2 of the 9 grievors came from Unit 'H' Mr Anand, for the union concedes that the mere fact that the 3 -panel members ~ame from Unit 'H' , and had therefore supervised some of the applicants, by itself, does not constitute a flaw He also did not allege bad faith in the sense of deliberate favouritism On the other hand, the union's position is that the manner in which the competition was carried out, the nature of the test and interviews ~nd the marking system etc I when comb'ined with the background of the panel members must, consciously or unconsciously, - , I ~3 result in applicants from Unit 'H' gaining an unfair advantage In his view, the disproportionate nwnber of Unit 'H' applicants 'N'ho were successful in the competition is indicative of that ~ The Board is also of the view that it is not practical, nor is it desirable, to have a rule that a person should not serve 9n a selection , . panel if he/she is or had been a supervisor of one or more of the applicants Provided the individuals are eXDerienced and' knowledgeable . \ in field of expertise, " eligible the relevant they should be, to I participate in a panel Nor is the Board, as a general rule, concerned about the absence of a Human Resource~ person on the panel The Board has held that there is no such requirement See, Re Mountain et aI, 629/89 (Fisher) Having said that, however, I agree with union counsel that where, as here, panel members have a personal familiarity w~th the work performance of only some of the applicants, the Board has an obligat~on to closely scrutinize the totality of the evidence relating to the competition i process to determine whether the composition of the panel r~sulted in any bias or ~nfairness The Board will return to that issue later (2) Review of Personnel Files As noted in Re Maclellandl De Grandis (supra), the Board has considered it to be a requirement that "All members of a selection committee should rev i e'N' the personnel files of all of the applicants" -; ~. 24 This is a basic and fundamental tequirement which has be~n repeated by the Board in numerous cases, that one would expect that the employer would routinely comply However, on the basis of the evidence, the Board must find that there was no compliance in this case At its highest, what the Board has is a hearsay statement by one panel member, (who admits that he himself did not review any personnel files) that he understands that the other t'No panel members reviewed the persqnnel files of some candidates, i e the successful candidates and 1Q other candidates "who were close" There are significant deficiencies here The union made it clear from the outset that as part of its case, it was alleging that the panel members did not review personnel files If this was not the case, it was up to the employer to call the panel members who did the review Here, the only panel member who testified admitted that he did not review any personnel files The other two did not testify And this, despite the fact that panel member Mr Ron Young, was in regular attendance at the hearing The documentary evidence only indicates that Mr Young requested that personnel files for certain employees be provided for review by himself and Nr \ Mohamad "if available" There is no evidence at all indicating that ~he files were made available as requested, or that Mr Young or Mr Mohamad actually carried out the stated intention to review them The review of personnel files for all applicants by all of the panel members is a basic requirement ~n the assessment of relat! ve equality for purposes of article 4 3 The Board has repeatedly said so The union clearly ~ 25 alleged that the employe~ failed to comply with this basic requirement If at least 2 panel members reviewed the files of some applicants, it was up to the employer to lead evidence to that effect If Mr Young or Mr Mohamad had done a proper review, one would expect them to have testified to that effect From their failure to testify, The Board' infers that they did not do so The Board strongly disagrees with the position that the union bears an onus to \=all evidence to show how the competition process was run The union has no onus to call evidence to prove the negative - that Mr Young or:: Mr Mohamad did not review personnel files or do reference ! checks Once the union raised the allegation, it was up to the employer to refute that allegation The Board finds Mr Wysoeky's suggestion that the union ought to have summonsed Mr Young and Mr Mohamad to prove its case to be absurd In Re Misir, 142188 (Dissanayake) at p 18 the Board stated It was generally agreed at the hearing that job competitions are vitally important to employees and that therefore they must be run fairly and be seen to be run fairly The particular collective agreement in article 4 3 has given special recognition to employee seniority in the process of a job competition Seniority is one of the most important rights negotd.ted in a collective agreement on behalf of employees An employee who competes for a job only has her own perception of the qualifications and ability If she is not successful in the competition, she may therefore feel aggrieved because she would not be aware of how the employer carne to its decision Thus the avenue open to her is to file a grievance, which is a fight she has under the collective agreement When such a grievance comes before the Board, the Employer has an obligation to be candid in setting out for the Board the process which was followed - 26 Even if I accept Mr Kenny's "understanding" to be factual, it still means that only 2 out of 3 panel members revie'tiedthe files Even they reviewed files only of some, and not all, of the candidates There is no evidence as to what relevant inrormation, if any, was found in the files and whether that information was considered in any meaningful way in assessing the candidates relative qualifications and a~ility In Re Alam, 735/85 (Brandt) at p 11, the Board stated as follows about the panel members failure to review the resumes of tne applicants "One would expect that these would contain valuable and pertinent information relative to the question of qualifications and ability, information which ought to have been assessed in the conduct or the competition" It would be reasonable to expect that personnel files would contain even more valuable and pertinent information The failure to review those is a serious defect Considering the composition of the selection panel, the failure to check the references of all candidates in this case t~kes on added significance The checking of the references in this context is not to ! be a formality, but an important part of the information gathering process with a view to assessing the qualifications and abilities A supervisor's assessment of an employee's work performance is a reliable and useful indication of that employee's qualifications and abilities That is information which must be taken into account in t'he process of a job competition In this case it was done only for some of the - . -- < i 27 candida tes, not all panel members considered even the reference checks done, and those checks were done only as a confirmation of the candidates successful on the basis of the scores >- In the particular circumstances of this case, the 3 panel members were at the time, or had until recently been, supervising some of the \ candidates, including the 9 incumbents Therefore, they would have had personal knowledge about the qualifications and abilities of those candidates The Board has held not only that it is appropriate for the panel members to take into account personal knowledge about an employee's qualifications and ability, but also that it is sensible for an employee to ass ume that his supervisor will take into account that personal knowledge Re Gratton et ai, 2538/90 (Barrett) The result in this case is that the 3 panel members, consciously or unconsciously, would have taken into account their personal knowledge about some of the candidates In practical terms, that could easily benefit those candidates For example.! in judging and interpreting an answer which is not very ciear, j is I doubt a panel member more likely to give the benefit of the to an employee, if the panel member believes from hi s experience supervising that employee, that the employee is competent and knowledgeable on the subject matter of the question The potential for this happening is greater where the tests/questions require judgement on the part of the panel member, as was the case here More will be said abopt that aspect later I / . - ~ 28 Based on the foregoing, I find that the failure to do reference checks by consulting the supervisors or all of the candidates constituted a flaw in the competition, which had the real potential to impact on the results of the competition .1 I ( 4) and (5) Criticisms about the written test and the oral interviews The union made numerous criticism about the marking, answer keys and scoring scheme of the written test and the oral interviews I will not review them in detail Some of counsel's criticisms are not without merit For example, it would have been reasonable and fair for the candidates to have been forewarned that particular questions had negative marks Nevertheless, while the test and the interviews could have been made fairer, I cannot find that any defects that existed, by themselves, were significant so as to render the whole process unfair, particularly considering that all of the candidates faced tll.e same testing and were subject to the same rules However, what the. evidence r,eveals 1.S that the way the test and interviews were structured and conducted, a significant element of subjectivity was 1.ntroduced into the process The questions and answers were not of the multiple choice variety Each panel member had to exerC1.se judgement in assessing each answer The subjectivity was increased because of some of the "defects" relied upon by the union Indeed, Mr Kenny when asked during cross-examination about the inconsistency among panel members in marking the same answer, explained that it was because of the judgement of each marker He said that one panel member gave the benefit of doubt to the candidate, while ;. ~ 29 the other did not ~lr Kenny testifi~d that if he gave the benefit of doubt to one candidate, he gave it to all who had a similar answer While Mr Kenny may believe that to be the case, and may have attempted i to be consistent, the Board is not convinced that when exercising judgement and interpreting answers, a panel member will not be unconsciously influenced by his personal knowledge about the candidates While as a general rule taking into account personal knowledge, per se, is not inappropriate, the concern is the probability that an imprecise answer by an employee whose knowledge and abilities are known to the marker will be interpreted by that marker in a more favourable light, than a similar answer by a candidate not known to him (4 ) Relative equality and seniority On the basis of the evidence the Board is driven to the conclusion that the selection panel did not assess the relative equality of the competing candidates in any meaningful or systematic way Apart from asserting that the panel considered relative equality, Mr Kenny was I unable to explain how that was done As the testimony set out supra at p 12 indicates, he testified at first that a candida tee had to meet a pre-determined range of marks or percentage He said that he could not recall what that mark or percentage was Subsequently he took the position that there was no such predetermined number He simply could not explain what exercise the panel went through, to ensure compliance with the explicit obligation under the collective agreement of assessing relative equality ., ~ 30 Based on this evidence there are t'No possibilities The first 1.S that the panel assessed relative equality on the basis of the raw scores in the tests and interviews The Board has repeatedly held that this is not acceptable See, Re Esmail, 1186/87 (Dissanayake) In Re Poole, 2508/87 (Samuels) at p 2 the Board wrote At the interviews, a series of questions were asked of each candidate to elicit information concerning the candidates qualifications and experience And then the candidates were scored on these answers, without any regard to the ihforma tion on the applied tion forms, or information which might have been found in personnel files, or informa Uon from the applicants' supervisors at the Hospital Apparently it is Ministry policy to base its decision entirely on the scores at the interview If this is the Ministry's policy, then it is absolutely incomprehensible to us why it should be so In the present case the panel did not review personnel files and supervisors reference chec ks were carried out only for the successful candidates, and even that only as a means of confirmation of the decisions Even on the basis of raw scores alone, Mr Kenny was cross- examined as to why grievor Ratansi, who scored only 9~% less than incumbent Brooks, was not considered relatively equal Apart fJ:;'om stating that the panel did not adhere to a 10% rule and asserting that the panel did not consider Mr Ratansi to be relative equal, no other explanation was provided Where the employer has undertaken an obligation to assess relative equality, it is simply not enough to state that X was not considered relatively equal to Y Some reasoflable and objective e~planation must be forthcoming why that was so .! ::; . 31 The other possibility, and in the Board's Vle'N' , the probable explanation, is that the panel members made a "gut level'; assessment of the candidates' relative equality without applying any objective criteria or guidelines That too, is not an acceptable process In Re Thirumalai 979/86 (Slone) at p 18, the Board stated as follows As for the process itself, we have already commented on its deficiencies While "gut levelu assessments may be ~uite valid and unimpeachable in many contexts, they are not a substitute for some objective criteria where, as here, the assessment is subject to a review : In the present case, as already noted the deficiency takes added significance because of the composition of the selection panel There is a greater probability that employees whose work performance was personally known to the panel members would benefit unfairly in a subjective gut level assessment process The Board is convinced that the employer did not make a fair and reasonable assessment of the candidates' relative equality based on all of the relevant information (5) The Terry Smith question The union's allegation is that this question was bas~d on an actual fact situation that existed between Mr Kenny and grievor Ladha Mr Kenny testified that he did not draft the Terry Smith question, that it wa.s a revised version of a question used previously in a competition in London, and that it was Mr Mohamad who produced that prio'r question I '. G ~ 32 That question from London - The Terry Timbrell question was filed in evidence It had some similarities to Mr Ladha's situation It had some significant differences also The focus of the questions were different In the circumstances, I accept Mr Kenny's testimony that the similarities were coincidental In any event, there is no evidence that any resemblance between the question and the relationship between Mr Kenny and Mr Ladha adversely affected any candidate's ability to answer the question Indeed, there is no evidence to show that at the time he did the test, even Mr Ladha made a connection between the fact situation in the question and his own relationship with Mr Kenny The Board, therefore, finds no foundation for the union's allegation in this regard Conclusion It follows from the foregoing that the competition process was significantly flawed No personnel files were revielNed Reference checks were done only for the successful candidates, and eyen that, only as a matter of confirmation Thus the panel members deprived themselves of valuable information that was available from these sources In addition, no objective assessment of the candidates' relative equality I was undertaken Due to the manner in which the test and interview were structured and marked, a significant element of subjective assessment was involved Considering that some candidates' work performance was well known to the panel members, and considering the absence of any 33 information from personnel files and supervisors' reference checks~ the subjective decision-making is likely to have favoured some candidates Indeed, the evidence strongly suggests that the panel took in~o account little else besides the marks derived through this defective process Counsel for the employer urged the board not to intervene, on the basis that there was no evidence that any of these flaws made any difference in the final outcome We can only speculate what the result would have been but for the flaws The Board is convinced, however, that as a result of the cumulative effect of the flaws seen in the context of the totality of the facts, the employer did not properly assess the candidates' qualifications and ability in compliance with 'the collective agreement In the circumstances, the Board finds that the results of the competition process are not reliable as indicative of th~ abilities_and qualifications of the candidates The Remedy The Board declares that in all of the circumstances the employer failed to comply with article 4 3 Apart from a declaration that the employer contravened the collective agreement, are the grievors entitled to any other remedy? The usual approach of the Board in redressing violations of this provision is accurately described in Re Thirumalai at p 18-19 as follows 34 We therefore conclude that the relative qualifications of Mr McElrea and the grievor have ne'ler been obj ecti vely compared Had we concluded that they were relatively equal, we would have awarded the job to the grievor based upon his lengthy ,seniority, but despite hearing all the evidence we do not consider ourselves to be in a good position to make that finding In this case, management must do so By the same tokE;n, had we been certain that the panel made the correct decision, despite the flaws in the proces s., we would not have felt. compelled to order a rerun of th,e competition We would have concluded that there was no miscarriage of justice and dismissed the grievance We are accordingly ordering that the competition for this job be re-run This Board, like the Board in Re Thj.,xurnalai, finds itself in a situation where the relative qualifications of the candidates have never been objectively compared The union in this hearing did not argue that the grievors were relatively equal in ability and qualifications It did not seek an order appointing any of the grievors Had the union sought such a remedy, the Board would not have been in a position to grant such a remedy Given the many deficienci~s the Board has found, some of which are \ fundamental, the Board cannot be satis fied that the panel nevertheless made the correct decision Therefore, normally the result would be an order that the competition be re-run However, Mr Strang on behalf of the employer, and Mr Wysoeky for Mr Francella, urged the Board to not order a re-run in this case The ..J - 35 argument was that "there should be no remedy where no damage is proven" - Mr Strang particularly argued that to obtain any .' beyond remedY a declaration, it was incumbent on the union to prove that the flaws in the competition process actually harmed the grievors 'Counsel argued that the union has not proven that there was anything in the personnel files of the grievors which would have influenced the panel members Similarly, there is no evidence that had reference checks been done, the grievors' supervisors wou~d have said anything significant which ',/Quld have made a difference The Board agrees that where grievors seek an order finding that they were entitled to a position, the union must put before the Board evidence which support such a claim However, in some cases, it may be that no one, not even the grievors, can be certain what the result would have been, had the employer complied with the collective agreement It may not be in a position to prove affirmatively that, but for the flaws in the process, the results would have been different How wo.uld, for instance, the union prove what a supervisor might have said about a particular employee, had the employer done a reference check as it was i required to do? Does this mean that regardless' of the nature of the flaws, the results should be allowed to stand subject only to a declaration? Certainly not If the Board accepts that reasoning, that would be a great incentive for employers to ignore the provisions of the collective agreement with impunity, for there will be very little to , lose That would put seniority and job security negotiated in the "" 36 collective agreement in jeopardy The Board rejects this argument against the granting of a remedy Alternatively, employer counsel submitted that the Board should consider awarding monetary damages for the lost opportunity of promotion, in place of an order for a re-run Reliance was placed on Re Weir/Taylor 1311/92 (Backhouse) There, like here, the Board was left ih a situation where it could not determine the relative abilities and qualifications of the candidates At p 7 the Board stated Because of the flaws in the competition, I am unable to determine whether Louise Weir's qualifications are significantly superior to those of Inez Perrineau To order ?- rerun of the competition after the incumbents have been in the positions for more than 3 years would not be fair to the Grievors Nor would it be practical After 3 years this case requires a final determination To order a rerun would be to extend the matter even further and to invite another round of grievances and arbitral review Accordingly, under these circumstances, I find the only appropriate remedy is to award damages to- each of tl).e Grievors to compensate them for the lost job opportunity Counsel pointed out that here the incumbents have been in the posted positions for approximately 5 years following the competition The Fair Share Program for which the competition was held no longer exists The employer raised a number of practical problems Is the re-run competition to be based on the current Tax Law and department policy, or that which existed at the time of the original competition? How would 37 th~ selection panel deal with the knowledge and experienc~ gained by the incumbents in the FO 5 positions over the last 5 plus years? The incumbents pleaded for justice and fairness It ~as pointed out that they were not to be blamed for any violation of the collective agreement or for the length of time it took to get these grievances determined They participated in a competition, did the same tests and interviews as the grievors, and were awarded the posit~ohs For over 5 years they had performed the duties of the positions It was submitted that to require them to go through another competition at this la~e stage would be very unfair Mr Wysoeky urged that the Board should balance any rights of the grievors that may have been breached, with the rights of the incumbents that will be affected if a re-run is ordered In his view, the Board should conclude that the balance of equity should favour , the incumbents The Board has no difficUlty understanding the frus'tration of the incumbents at the prospect of having to compete for a job which they .had held for 5 year? However, this Board has no inherent equitable powers , The Board's mandate is to determine rights under the collective agreement The grievors had an important right to have their abilities and qualifications fairly assessed relative to their competitors This right has been breached In contrast, the incumbents had no right to be awarded the positions other than through a competition process which complied with the collective agreement ,- / , ) 38 Where the Board finds a violation of the collective agreement it has an obligation to redress that The goal in ever'v case is to put the grievors, as much as possible, in the same position they would have been in, but for the violation In some cases, that is very difficult to do This is such a case Any remedy ordered by the Board is likely to be far from perfect and will likely cause hardship on some of the parties However, the absence of a perfect remedy is not a reason to give no remedy If it has to, Board must make the difficult decisions However, before that is done, in the particular circumstances of this case, the Board directs that the parties meet and attempt to agree upon an acceptable remedy at the earliest possible date The parties will \ have much more flexibility in designing a remedy which is least disruptive If no agreement is reached within 60 days from the date of this award, the Board will .reconvene at the request of any of the parties to receive further submissions on remedy in light of the findings in this award The Board remains seized for that purpose Dated this 2ND day of March, 1999 at Hamilton, Ontario ~e~---~ Nimal V Dissanayake Vice-Chair