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HomeMy WebLinkAbout1990-2707.Savarimuthu.92-02-06 Decision ." I ( <-,... 1111 ONTARIO CROWN EMPLOYEES EMPLOYES DE LA COURONNE DE L 'ONTARIO GRIEVANCE SETTLEMENT BOARD CpMMISSION DE REGLEMENT DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. M5G 1Z8 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO/< MSG lZ8 IN THE MATTBR OF AN ARBITRATION Onder TIELEPHONEITELf:PHONE< (4161 326-1388 FACSIMILIEITELECOPIE: (416; 326-/396 2707/90 'I'D CRan EXPLODBS COLLECTIVE BARGAINING ACT BB'J.'WEEN ( BEFORE: FOR THE GRIZVOR FOR THE EMPLOYER FOR THB THIRD PARTY HEARING Before THE GRIEVANCE SET'l'LEXEN'l' BOARD OPSEU (Savarimuthu) - and - The Crown in Right of Ontario (Ministry of Health) N. Dissanayake W. Rannachan < o. Clark H. Simand Counsel Cornish Roland Barristers & Solicitors T. Kirk Counsel Legal Services Branch Ministry of Health E. Xavier President OPSEU, Local 554 July 24, 1991 November 29, 1991 Grievor Employer Vice-Chairperson Member Member 2 DECISION This is a job competition grievance wherein the grievor, Ms. Rani Savarimuthu, alleges that the employer denied her a position of "Expenditure Clerk", at the Ministry's Finance and Accounting Branch at Don Mills, ontario, contrary to article 4.03 of the collective agreement. That article 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. The competition in question was held in October 1990 to fill 3 vacancies for Expenditure Clerk classified as OAG-6. At the time, the grievor was employed by the Ministry of Health in Kingston, Ontario, as a Resolve unit Clerk, classified as OAG-8. For personal reasons she wished to move to Toronto, and applied unsuccessfully for the lower-rated Expenditure Clerk positions in Toronto., The successful applicants, Ms. Mila Ong, Ms. Carlene Kellman and Ms. Norma Urbiztondo, were provided with proper notice of this proceeding. While they did not attend in person, they were represented at the hearing by Mr. Errol Xavier, President of OPSEU, Local 554. ( 3 At the outset, the parties filed with the Board a brief "Agreed statement of Facts" and a number of documents material to this grievance. The only witness called by the union was the grievor. The employer called the 3 members of the selection panel. Mr. Xavier participated to a limited extent by cross-examining some of the witnesses, but did not make any submissions for or against the grievance. ( The selection panel consisted of Ms. Anne Vatistas (Manager, Corporate Expenditures) , Mr. Bashir Jaffer (Supervisor, Expenditure Operations) and Ms. Janet Geisberger (Human Resources Officer). Mr. Jaffer was the direct supervisor of the Expenditure Clerk positions which were the subject of this competition. He reported to Ms. Vatistas, who had overall responsibility for the area. The parties have agreed that the competition consisted of 2 phases. Phase I consisted of oral interviews during which a series of pre-set questions were put to each candidate. Each panel member independently marked the answers. The average of the marks given by the 3 panel members constituted a candidate's final interview score. This competition attracted 137 applicants. Of those, 12 were pre-screened for interviews. Based on the interview scores, the top six applicants were: 4 1. Ong with 78% 2. Kellman with 65.49% 3. Urbiztondo with 63.13% 4. Lewis with 60.39% 5. Savarimuthu with 56.86% 6. McIntosh with 48.6% Therefore Ms. Urbiztondo scored 6.27% higher and Kellman 8.63% higher, than the grievor. Despite employer counsel's submissions to the contrary, the evidence leaves no doubt that following the first phase, the selection panel considered the grievor to be relatively equal in skill and ability to at least Ms. Urbiztondo'. The agreed statement of facts at para a states that " . .. 3 candidates having the top interview marks, as well as anyone reasonably close thereto, were selected for Phase 2 of the competition". At para.9 it lists the grievor as being. among "Those deemed to be reasonabl v close in respect of the interview scores." (Emphasis added). Ms. Geisberger had the following dialogue with union counsel (Q) I take it after the interviews the grievor was relatively equal? (A) Yes. (Q) But then you had to consider personnel files and other things? (A) Yes. Similarly with Ms. Vatistas - (Q) The selection was not on just scores, but on interview scores she was relatively equal? (A) Reasonably close. Mr. Jaffer during examination- in-chief (Q) Was seniority discussed by you three? (A) Yes. We thought that the third candidate Urbiztondo was relatively 5 equal to the fourth and fifth candidates, CQ> SO based on scores you decided who was relatively equal? (A) Yes, at that point it was based on the scores. Finally, the first two questions put to Mr. Jaffer in cross-examination and his answers were: (Q) At the end of the interviews the consensus was that the grievor was relatively equal to the 3rd candidate? (A) Yes. (Q) The panel discussed and decided that? (A) Yes. ( ( In light of the foregoing evidence, it is not open to employer counsel to make a submission that the grievor was not considered to be relatively equal, but only as "within the general ball-park". The evidence from the 3 panel members makes it clear that they considered the grievor to be relatively equal to Ms. Urbiztondo after the interview stage, but that during the second, phase they discovered certain information that led them to conclude that the grievor was no longer relatively equal. The union does not challenge any aspect of the competition's first phase. Nor does the union take issue with the employer's right to conduct the second phase by reviewing the employees' personnel files and obtaining references. However, the union's primary contention is that following the second phase of the competition the grievor remained relatively equal, and that therefore as the candidate with the 6 greatest seniority, she should have been awarded a position. In the alternative, the union takes the position that there were fatal and fundamental flaws in the manner phase II of the competition was conducted. Therefore, it is submitted that the Board should at least direct a re-run of phase II by a different selection panel. It follows from the foregoing facts and the respective positions of the parties, that the primary issue for the Board to determine is whether the employer was justified in concluding that the grievor ceased to be relatively equal as a result of the second phase of the competition. While the panel selected six candidates (the top six scores) for consideration at Phase .II of the competition, Lewis and McIntosh had no seniority over the top three candidates even if they were found to be relatively equal. As a result they fell out of contention. That left the top three candidates and the grievor. Ong and Kellman were "government temporary" employees and had little seniority. Urbiztondo had approximately 10 years seniority. In contrast, the grievor had approximately 20 years seniority. ) The job posting for these positions reads: 7 ( EXPENDITURE CLERKS (3) (Office Admin.6) (Schedule 3,7) $13.89-15.22 per hour (open) Bring your skills to the Ministry of Health, finance and accounting branch, to process supplier invoices, travel claims and other valid expense claims for payment. You will: verify accuracy of all invoices and terms of payment; check/verify travel and relocation claims; ensure prompt payments are made, necessary approvals are recei ved and branch procedures and Management Board of Cabinet directives and guidelines are followed; key data into an on-line financial system; answer telephone and written inquiries from companies and ministry branches. Location: 15 Overl.a Blvd., Toronto. Qualifioations: good knowledge of basic accounting, government policies/procedures and qomputerized accounting procedures acquired through related experience; arithmetic skills; ability to set priorities for high-volume workflow and meet tight deadlines; good communication and interpersonal skills. Area of searoh: within 40 km of Toronto or Kingston ( The questions asked of candidates at the interview covered the following topics: Education and Experience (2 questions with total weight of 5); Relevant skills and knowledge (11 questions wi th total weight of 34) ; . Communication Skills (2 questions with a total weight of 5); and Personal Suitability (3 questions with a total weight of 7) . The agreed statement of facts states that Phase II consisted of "a general review of the applicant's abilities 8 to perform the job and consideration of their personnel files and references, to the extent available". The evidence indicates that following the interview phase, it was agreed that Ms. Geisberger would do the checking of the personnel files, and that Ms. vatistas would contact the references. It is common ground that of the 3 panel members, Ms. Geisberger was the only person who did any review of personnel files. Since Ms. Ong and Ms. Kellman were "Go-Temp" employees they had no personnel files for Ms. Geisberger to review. Ms. Geisberger reviewed Ms. Urbiztondo's personnel file covering her 10 years in government service, which was available at the Finance and Accounting Branch. However, the grievor's file was in Kingston. Ms. Geisberger talked to a personnel officer in Kingston, and had her read parts of the grievor's file over the. telephone. A single page containing hand- written notes made by Ms. Geisberger during the telephone conversation was filed in evidence. Ms. Geisberger testified that she was reluctant to have the grievor's file mailed to her, because that would have caused a delay and because there was a risk of it being lost in the mail. Ms. Vatistas was the only panel member who contacted references. Each applicant had provided 3 references. For Ms. Ong, Ms. Kellman and Ms. Urbiztondo, only one reference each was obtained. The references provided on behalf of Ms. 9 Ong and Ms. Kellman were filed, but the Board was informed that Ms. Urbiztondo's reference had been lost. The panel members subsequently shared and discussed the information gathered through personnel files and reference checks, and made their final determination. As already noted, Ms. Geisberger had nothing to report on Ms. Ong or Ms. Kellman because they had no personnel files. When Ms. Geisberger was ( asked how she compared the grievor with a 20 year file with Ms. Ong and Ms. Kellman who had no files, she replied that since they had no files she assumed that they had perfect records. Ms. Geisberger agreed with union counsel that the grievor's performance appraisals over the years were "on or above standard". The grievor's file indicated that she had taken 15 1/4 days off sick with 9 separate occurrences in 1987 and 29 1/2 days off with 15 occurrences in 1988. There was no record of the grievor's attendance on file for the period after 1988. The grievor' s first reference was provided by Ms. P. MacPherson, who was her direct supervisor in the resolve unit clerk position she occupied at the time of the competition. Ms. Vatistas admitted that she was aware at the time that Ms. MacPherson was the grievor's current direct supervisor. Ms. MacPherson says under communications with co-workers that the 10 grievor "Relates well - No problem" and that she "related very well" with client groups. It is stated that Ms. MacPherson has not made or received any complaints about the grievor and her attendance is stated to be "very good". Ms. MacPherson further notes that she is not aware of any weakness on the grievor's part. We have closely reviewed this reference and cannot find anything at all which can be said to be even vaguely negative. The second reference for the grievor was provided by Mr. Abe Moses, Assistant Director of Programme Accounting, an area in which the grievor had worked for a substantial period, prior to going to the Resolve Unit on a secondment. Mr. Moses had no direct supervision of the grievor, but was two or three levels up on the management hierarchy. Mr. Moses suggests under other comments, "that OAG 6 level clerical nature - shouldn't have any diff icul ty" . However, under "communications with client groups" he comments, "some difficulty with oral communication in a previous secondment which dealt with clients", and under weaknesses, he states, "Has to improve oral communication skills." On attendance, his only comment is "Had one problem with an elbow". ) Mr. Bruce Kirton, Manager, Health Insurance Payments provided the third reference for the grievor. Like Mr. Moses, Mr. Kirton had been a couple of steps up in the management ( "- ( 11 hierarchy. The only negative aspect of his reference is the remark that "oral communication skills could be upgraded but maybe the people who work with her directly have no difficulty". On attendance Mr. Kirton notes "Attendance has improved from 1988 to 1989 by sick leave dropping from 18 1/2 to 5 1/2". Ms. Geisberger testified that her only concerns about the grievor were, "the attendance problem revealed by the file", and "the communications problem indicated at the interview". When asked to. explain the communication problem at the interview, Ms. Geisberger testified that the grievor "lost the train of thought and went around in circles . in trying to answer questions", that "she started to answer then went to something else and came back~to the answer". On attendance, Ms. Geisberger testified that a problem was indicated for 1987 and 1988, but conceded that there was no record of the grievor's attendance since 1988. However, Ms. Geisberger testified that despite the absence of any records, she assumed that the grievor's poor attendance would have continued after 1988. Ms. Vatistas testified that her main concern about the grievor was her "communication problem", which she said was apparent at the interview and also was raised in the reference checks. She testified that at the interview, the grievor "had 12 difficulty in focusing or coming to a point. It was difficult to see what point she was trying to make". Ms. Vatistas testified that she did not feel that the communication problem by itself disqualified the grievor. However she went on to state that the communication problem, combined with the grievor's lack of experience in the various aspects of the Expenditure Clerk position, and her attendance problem, led her to conclude that the grievor was not competent to do the expenditure clerk job. Mr. Jaffer did not review any of the personnel files nor did he have anything to do with obtaining any references. However, he testified that based on his observations at the grievor's interview and from what Ms. Geisberger and Ms. ) ~ vatistas reported, he had serious concerns about the grievor's suitability for the Expenditure Clerk position. He testified as follows about the grievor's interview: "I had difficulty in how she answered questions. She will give an answer and when we go to the next question she will go back to the previous question and give a different answer. Even though she knew the answers, we were getting different messages". Mr. Jaffer, unlike Ms. Vatistas, testified that in his view the communication problem by itself disqualified the grievor. Mr. Jaffer also had a concern about the grievor's experience. He listed the core duties of the Expenditure 13 Clerk as processing of travel claims, invoices and relocation expenses, reimbursement of accountables; telephone calls; interpretation of p'j>licies and guidelines; and expenditure refunds. It was Mr. Jaffer's opinion that based on her experience, the grievor would be competent to perform only th~ expenditure refunds aspect of the job, whereas the 3 incumbents had experience in all aspects of the job because they had been performing the Expenditure Clerk duties on an acting basis. \ Regarding attendance, Mr. Jaffer also agreed that there was no evidence of any attendance problem on the grievor's part since 1988. He also acknowledged that by 199"0 the grievor's absences had dropped to 5 1/2 days, which was well within the accepted standard. Nevertheless Mr. Jaffer testified that he had a concern because there was no explanation why the grievor's attendance was very poor untill 1988 and why it suddenly improved after that. He concluded that since absenteeism had been a problem in the past, "it can happen again". Mr. Jaffer testified that he was also troubled by the fact that the grievor had not given her group leader in her stop Payment and Verification Clerk position who had direct supervision over her as one of the references. It was apparent that Mr. Jaffer drew a negative inference from this. 14 When he was referred to the positive comments in the grievor's 3 references, Mr. Jaffer was not willing to attach much weight to them, in Ms. MacPherson's case because she had supervised the grievor for only a short period, and in the case of Mr. Moses and Mr. Kirton because they had not directly ,supervised the grievor. Based on the testimony of the panel members it is fair to conclude that they had the following concerns about the grievor, which caused them to conclude at the end of the second phase of the competition that the grievor was no longer relatively equal to any of the 3 incumbents. 1. Communication skills 2. Absenteeism 3. Experience 4. Failure to provide direct supervisor as a reference. The issue for the Board is to determine whether these concerns were objectively demonstrable, and if so, whether those concerns justified a conclusion that the grievor was not relatively equal to any of the successful candidates. communication skills This was the major concern shared by all three panel members. As employer counsel pointed out "good communication and interpersonal skills" was listed in the job posting as a ( \. 15 required qualification. The Expenditure Clerk position specification contained duties involving contacting claimants, and other government branches for information, and answering queries from vendors, auditors etc., and includes as a required skill "Ability to communicate effectively with suppliers, claimants and peers in other ministries". The position specification and the job posting make it clear that the expenditure clerk position primarily involves basic accounting skills, which also required the input of data into an on-line computer system. The evidence indicates that the grievor has the skills to perform these functions. However, the evidence also indicates that in order to perform these duties the grievor would have to obtain information from a number of sources. The evidence indicates that the grievor had performed the Resolve Unit Clerk duties for approximately 5 months immediately preceding the competition. While employer counsel questioned the grievor's testimony that 40 to 50% of her time in that position was spent gathering information on the telephone, a letter of reference dated september 21, 1990 from her supervisor Ms. MacPherson, which was filed with us, confirms that evidence as accurate. As noted, Ms. MacPherson, in her reference provided to the selection panel, states that she had no complaints from anyone about the grievor's 16 communication skills. In fact she comments very favourably about the grievor's communication skills. It appears to us that Ms. MacPherson's evaluation of the grievor's communication skills was not accorded any weight by the panel. The reason adduced was the short period during which Mr. MacPherson had supervised the grievor. Two of the three panel members conceded that they were not aware even at the time they testified that Ms. MacPherson was the grievor's direct supervisor in the Resolve Unit job. In contrast, the panel members put significant weight on the comments by Mr. Moses and Mr. Kirton to the effect that the grievor's oral communication skills could improve. We find this to be an inconsistent position to take. On the one hand, the panel takes the position that they were concerned because they believed that Mr. Moses and Mr. Kirton had no direct supervision over the grievor and therefore had no direct knowledge about her work. Yet at the same time, they heavily rely on their negative comments about the grievor's communication skills, while ignoring the extremely positive comments made by a direct supervisor, Ms. MacPherson. ') ) Moreover, the evidence indicate~that the grievor was not the only candidate whose communication skills were subject to negative comments. Ms. Urbiztondo's communication skills were 17 subject to negative comments in a performance appraisal. In addition, notes taken by Ms. Vatistas dated 22 October 1990 of her discussions with the group leader who provided the reference for Ms. Ong and Ms. Urbiztondo contain the following. Re Ms. Urbiztondo - "oral communication weak". Re Ms. Ong - "oral communication needs a little work". What this evidence indicates clearly is that based on files and references, Ms. Ong, Ms. Urbiztondo and the qrievor all had \ negative evaluations of their oral communication skills. The comments were almost identical, in that they did not claim that the employees' oral communication skills were inadequate to perform the job, but merely that it needs some improvement. The strongest criticism, if any distinction is to be made, is against Ms. Urbiztondo, that her oral communication is weak. When this was put to the employer wi tnesses , there response was that at the interview they did not notice a problem with the oral communication of any of the three \ \, incumbents, as they did with the grievor. Therefore the difference ultimately is in the panel's perception of the oral communication skills of the grievor based on the interview. While we accept their evidence that the manner in which the grievor answered the questions was not as eloquent as the others, we do not see that as disqualifying the grievor. Nor 18 ) does that push the grievor outside the range of relative equality. It must be remembered that the grievor's answers at the interview were graded by the panel. If she could not convey the proper answer, either because she did not know or because she could not express clearly what sh~ knew, that would have been reflected in the scoring. The fact is that her scores were within 10% of 2 of the 3 top candidates. It is therefore reasonable to conclude that the grievor must have conveyed the correct answers to the panel adequately, although perhaps not as eloquently as the others. It is also of note that the interview questions contained . a separate section headed "Communication skills". The grievor obtained the same score as the 2nd and 3rd candidates for this section. Moreover, we are not satisfied that oral communication skills form that significant a part of the Expenditure Clerk position as it is made out to be. A review of the jOb posting and the position specification indicates that this is essentially a clerical job requiring basic accounting and finance skills. Since the interview questions were designed to ascertain the employee's ability to perform the posted position, it is reasonable to assume that the weighting of the questions will reflect the relative importance of the various skills. We note that out of a total of 51, the section on communication skills is assigned 2 questions worth only 5 points. ( \ 19 In all of the circumstances it is our opinion that the grievor's communication skills are adequate for the purposes of the job in question. From the resumes that were filed in evidence it is apparent that English is not the first language of Ms. Ong, Ms. Urbiztondo or the gr ievor. The evidence indicates that they all had deficiencies in oral communications. However, they have all satisfactorily performed the limited function of obtaining relatively simple information by telephone. Ms. Ong and Ms. Urbiztondo, had negative comments about their oral communication skills. However, apparently they have performed the Expenditure Clerk duties sufficiently adequately, because their supervisors Ms. vatistas and Mr. Jaffer, were willing to appoint them permanently to the positions. The grievor had spent 40-50% of her time during the 5 months immediately preceding the competition gathering information over the telephone. There is no indication of any problem. On the contrary her supervisor has commented extremely favourably about her performance. In our view the grievor also can adequately perform the Expenditure Clerk duties despite her less than perfect command of the English language. Absenteeism The evidence does not disclose any absenteeism problem that will affect the grievor's ability to perform the 20 ',,- "'- Expenditure Clerk duties. We find the employer's treatment of this factor to be totally unacceptable. No doubt the grievor had a bad attendance record in 1987 and 1988. However, there is nothing whatsoever in the records to suggest that these absences were anything but legitimate absences due to sickness. The only evidence we have is that of the grievor, who testified that the bulk of these absences were attributable to a broken elbow, and stress she suffered when her teenage children had to move out of their home in Kingston to live alone in Toronto to attend University. The employer has not kept records of the grievor's attendance after 1988. The grievor is not to be blamed for that. The panel simply looked at the attendance record for 1987 and 1988, and assumed that the poor attendance would have continued in 1989 and ) / 1990. This they did, without even bothering to ask the grievor or anyone else, at or after the interview, what her absences in 1989 and 1990 were. Also, they chose to ignore the positive comments about the grievor's attendance in her references which directly contradict "an assumption" that the grievor's absenteeism problem would have continued. In any event the uncontradicted evidence before us is that the grievor's attendance in 1989 and 1990 were within the acceptable ministry standard. This evidence is further corrobarated by the grievor's references. There is no evidence to suggest there is any reason presently that would 21 prevent regular attendance if grievor is appointed to an Expenditure Clerk position. The employer's conclusion that the grievor will have an attendance problem, which is based on a series of unfounded assumptions, without regard to the information in the references and without any inquiry whatsoever from the grievor, is not justified. EXgerience (' This factor was relied on by Mr. Jaffer, and to a lesser extent, by Ms. Vatistas. The distinction boils down to this. Ms. Ong, Ms. Kellman and Ms. Urbiztondo have all occupied the posted position on an acting basis. Therefore the selection panel felt that they were "experienced" in all aspects of the job. The grievor has not occupied an Expenditure Clerk position. Therefore, according to the employer she is inexperienced in the various aspects of the posted position and hence, inferior to the other three candidates. We find this not to be an appropriate distinction justifying denial of a position to the grievor. The employer has the right to appoint employees to vacancies on an acting basis for up to 6 months, without a posting and without any regard to seniority. CArticle 6.6.1). If we accept the employer's reasoning it can appoint any person of its choosing to a position on an acting basis, then post the position permanently, and prefer the person it had appointed on an 22 acting basis over employees who have greater seniority, on the basis that that person had "experience" in the posted position. That would enable to the employer to completely circumvent the seniority provisions in the collective agreement, and render those provisions, particularly article 4.3, absolutely meaningless. The parties could not have intended such a result. While we do not find that the employer in this case attempted to circumvent seniority rights, such reasoning opens up that potential in other cases and cannot be accepted. The evidence indicates that the grievor has satisfactorily performed a number of clerical jobs at the Ministry of Health in the Accounting/Finance field, over, a period of 20 years. Her performance appraisals are on or above standard. There is no evidence to suggest that the Expenditure Clerk position is significantly different from the clerical positions the grievor has held in the past. There is no evidence to suggest that Ms. Ong, Ms. Kellman or Ms. Urbiztondo had any prior experience as Expenditure Clerk when they first assumed the positions on an acting basis. Yet they familiarized themselves with the job and performed the duties adequately. We see no reason why the grievor, with her substantial experience in government clerical jobs in the accounting and finance field cannot do the same. ') 23 The concern about the references The concern is that the grievor did not name her group leader in her regular position as stop Payment and Verification Clerk. The evidence only shows that candidates were asked for 3 references. There is no indication that they were gi ven any instructions as to the selection panel's preference as to who might be proper references. The grievor named as her first preference her direct supervisor in the ( posi tion she held at the time, and named two members of management who had indirect supervision over her in her regular job which she had last performed 5 months previously. From this, the selection panel appears to have inferred that the grievor deliberately avoided naming the group leader, because the group leader would have given a negative reference. Once again this assumption was made without ever asking the grievor to explain why she named the references as she did. We had no direct evidence that the group leader who supervised the grievor in her job as Shop Payment and \ " Verification Clerk had retired. However, under cross- examination Ms. Vatistas and Mr. Jaffer were asked whether they were aware that she had retired. Neither was able to deny that that was so. It appeared to us that they did not even know who that group leader was and where she was at the time of the competition. Without finding out whether the group leader was available to be named as a reference, and without inquiring from the grievor whether she had a 24 reasonable explanation for not naming her, it appears that the panel jumped to the conclusion that she was not named because she would have' provided a negative reference. In any event, Ms. Vatistas testified that Mr. Moses and Mr. Kirton "appeared to know about the grievor' s work". There is certainly nothing in the evidence to suggest that that was not so. If they did not know enough about the qrievor to be able to provide a reference, one would expect them to say so. Instead, Mr. Moses states that he has worked with the qrievor since 1983. Mr. Kirton states he worked with her since May 1982. If the panel members had some concerns about the knowledge Mr. Moses and Mr. Kirton had about the grievor's work it was open to them to ask them directly how closely they had observed her work. They are not entitled to assume, without any inquiry, that Mr. Moses and Mr. Kirton were making their comments without any knowledge of the grievor's work. While Ms. MacPherson had supervised the qrievor only for 5 months, that was the period when the grievor spent 40-50% of her time gathering information over the phone. Ms. MacPherson's reference is no less reliable than the reference provided by the Expenditure Clerk group leader on behalf of the other candidates. Ms. Vatistas testified that one of the incumbents (she did not identify who it was) had worked as Expenditure Clerk (acting) for one year and the other two for 25 approximately 6 months. Therefore, for two of the candidates, the group leader providing the reference would have had supervision for a maximum of 6 months, which is the same period of supervision Ms. MacPherson had over the grievor. The documentation pertaining to Ms. Urbiztondo and the grievor were filed. In addition, the panel members testified about the reasons why they felt the grievor was not relatively equal in qualifications and ability to Ms. Urbiztondo. While their belief may have been sincere, for the reasons we have given in the preceding pages, we have concluded that none of the concerns they had during phase II of the competition are objectively supportable by the evidence, as would justify a conclusion that the grievor was not relatively equal to Ms. Urbiztondo. Based on the information before us, we are in a position to find that the grievor's qualifications and ability to perform the Expenditure Clerk duties remained relatively equal at the end of the two phases of the competition. At the end of the first phase she was a mere 6 . 27 behind Ms. Urbiztondo. We find, and all three members of the selection panel agreed during testimony, that at that point, the grievor was relatively equal to Ms. Urbiztondo. For the reasons we have given, we have concluded that none of the factors considered by the panel during phase II had the effect of changing this status of relative equality. Accordingly as the 26 more senior employee, she should have been awarded a position instead of Ms. Urbiztondo. By way of remedy, the grievor is entitled to be appointed to a position of Expenditure Clerk, with compensation and interest if applicable, and we so direct. Gi ven this finding, it is unnecessary for the Board to deal with the union's argumen~ that-phase II of the competition was fatally flawed. We remain seized to deal with any difficulty the parties may encounter in implementing our direction that the grievor be appointed to a position as Expenditure Clerk, with compensation and interest. ) Dated this 6th day of 'ebruarY1992 at Hamilton, Ontario ~~~ ,7~ N. Dissanayake Vice-Chairperson /,c;~d~.--~ w. Rannachan Member A1L1;;. z -.F? D. Clark Member \ /