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HomeMy WebLinkAbout1979-0179.Cheng.82-06-03IN THE ,NATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINI>JG ACT Before THE GXEVANCE SETTLEMENT BOARD aetween : OPSEU (MS. Shu-Tsing Chena) and The Crown in Right of Ontario (Ministry of Natural Resources) Sefore: R. L. Verity, Q.C. - Vice Chairman R. Russell - Member B. Laniqan - lMenber For the Griever: S. T. Goudge, Counsel Cameron, Srewin & Scott For the Employer: M. Fleishman, Counsel Crown Law Office Civil Xinistry of the Attorney Generai Hearings : .&.rch 29, 1982 :42y 21, iSE2 - 2 - AWARD In this-Grievance, Ms. Shu-Tsing Cheng alleges that she has been unjustly denied one of two promotions to the position of Cartographer 4 pursuant to a job posting dated April 24th, 1979. Specifically, in a Grievance dated >lay llth, 1979 she .grieves that her “qualifications and abilities have been unfairly appraised”. The remedy requested is “fair consideration for above-mentioned vacancy”. The two successful candidates, Steven Jeffrey Smith and Costas Karpetas, were present throughout the Hearing and were given the opportunity of questioning witnesses, testifying and making oral submissions. Both Messrs. Smith and Karpetas testified at the Hearing. This case involves the interpretation and application of Article 4.3 of the Parties’ Collective Agreement. That Article reads as follows: “In filling a vacancy, the Employer shall give primary consideration to qualifications and abilitv to perform the required duties. Where qualifications and ability are relatively equal, length of continuous service shall be a con- sideration.” In this instance, the Grievor’s seniority was consider- ably less than the seniority of Messrs. Smith and Karpetas. !.lS . Cheng’s seniority date is January ZOth, 1975, while Smith’s seniority dates back to June of 1971 and Karpetas’ seniority date is November of 1967. - 3 - The UnTon Counsel, Mr. Goudge, argued that the Crievor should have been selected for the position as the “superior candidate”. Alternatively, it was alleged that the methodology of the competition was so patently unfair and “tainted” that it should be set aside and a rerun of the competition be held. Counsel for the Employer, Mr. Fleishman, argues that there was no reason to upset the result of the competition, that the Grievor did not have the necessary experience for the job, and that the Union did not discharge the onus of establishing that the Employer had failed to comply with the provisions of Article 4. The Grievor, Ms. Cheng, is an intelligent and aggressive woman who is approximately 38 years of age. She was educated in Taipei, Taiwan in both High School and University, and received a B.A. .degree in geography. To her credit, she has successfully completed extensive post-graduate experience in the United States. In 1969-70. she was a Cartographic Assistant in the Cartographic Laboratory at Southern Illinois University. She received a Masters degree in geography (specializing in Cartography) from Oklahoma State University where she also served as a Cartographic Assistant in the Department of Geography in 1971 and 1972. In addition, she successfully completed five Cartography courses at the University of Wisconsin where she ~also served as ‘a project assistant at the University Cartographic Laboratory in 1972-73. During her time at the University of Wisconsin, the Grievor worked - 4 - with a Dr. Robins”on who is the author of the book “Elements of Cartography”, which is one of the definitive textbooks in the field. In 1974, the Grievor was offered a position at the University of Waterloo at the Cartographic Centre, however she had to decline that position because of Visa difficulties. Sub- sequently she came to Canada in January of 1975 and commenced work on January IOth, 1975 with the Drafting Section (surveys and mapping branch) of the Ontario Ministry of Natural Resources. MS . Cheng remained in the Drafting Section until her position became redundant, and on February 8th. 1977, she was transferred to her position in the Cartographic Section as a Cartographic Technician. She is now a Senior Cartographic Technician and assumes the responsibilities of the traditional Technician’s job of compilation, opaquing, peeling, scribing, digitizing and map making. One of the successful incumbents, Steven Smith aged 54, was classified as a Cartographer 3 at the time of the competition in 1979. He was educated at Willowdale High School and successfully completed a two year Cartographic Techniques Course at Seneca College, graduating with a diploma in 19il. Smith commenced work as a Junior Draftsman on June 7th, 1971, and at that time was offered and rejected a position as Chief Cartographer at the University of Guelph. Subsequently, he was appointed to the Cartographer 3 classification on December lst, 1976. - 5 - The ot&r successful incumbent, Costas Karpetas is approximately 53 years of age and received his early education in his native Greece. From his own evidence, he had little formal education but has achieved considerable practical experience since joining the Ministry in 1967. He has been classified as a Cartographer 4 for a period in excess of 8 years. The relevant job posting (Exhibit 4) reads as follows: "TO: LANDS AND WATERS GROUP ONLY RE: CARTOGRAPHIC CONTRACT MONITOR (TOPOGRAPHIC) (2 POSITIONS) CARTOGRAPHER 4 ($301.85 - $346.67 PER WEEK) BASIC MWPING SECTION - SURVEYS AND MAPPING BlUWCH EQUALITY OF: OPPORTUNITY FOR EMPLOYMENT DUTIES: TO MONITOR THE PERFORMANCE OF COMMERCIAL MAPPING . COMPANIES WORKING UNDER CONTRACT FOR ONTARIO GOVERNMENT BASIC MAPPING PROGRAMS. THE WORK RELATES PRIMARILY TO TOPOGRAPHIC ACCURACY AND CARTOGRAPHIC QUALITY. QUALIFICATIONS: CWDIDATES SHOULD HAVE POST-SECONDARY EDUCATION IN CARTOGRAPHY, PREFERABLY WITH A DIPLOMA FROM A COLLEGE OF APPLIED ARTS AND TECHNOLOGY, OR EQUIVALENT FORMAL EDUCATION. CONSIDERABLE SPECIALIZED EXPERIENCE IN CARTOGRAPHY AND GRAPHIC ARTS IS NECESSARY, TOGETHER WITH THE ABILITY TO INTERPRET AND CONVEY DETAILED TECHNICAL SPECIFICATIONS TO COMMERCIAL SURVEYING ,iNLVD MAPPING CONTRACTORS. -6- APPLICATIONS SHOULD BE SUBMITTED TO PERSONNEL SERVICES BRANCH, WHITNEY BLOCK, QUEEN'S PARK, TORONTO, ONTARIO, BY APRIL 24, 1979. TORONTO .4REA OF SEARCH: LZNDS AND WATERS GROUP ONLY APRIL 10, 1979 COMPETITION NO. L&W $1" 'RESTRICTED Essentially, the job entailed a complex and detailed assignment of monitoring and setting the specifications of the production of maps by commercial mapping Companies involved in preparing topographic mapping in Ontario. The job entailed extensive oral communications between contracting Company personnel and the successful candidate on behalf of the Ministry. Mr. Brian Jackson, the Manager of the basic Mapping Section of the Ministry, prepared the job posting, and also prepared a preliminary selection procedure (Exhibit 15), and in addition was the author of the selection materials as presented by Exhibits 7 and 8, which in turn were drafted as a result of Exhibit 14 - a Position Specification and Class Allocation Form. He was one of three members of the Selection Board. The Position Specification and Class Allocation Form (Exhibit 14) reads as follows: "POSITION SPECIFICATION AND CLASS ALLOCATION FORM USE ONLY WHERE CLASSIFICATION DECISIONS ARE MADE UNDER AGREEMENT BETWEEN A DEPUTY MINISTER AND THE CHAIRMAN OF THE CIVIL SERVICE COMMISSION Ontario Public Service P.4RT 1 Position Title Cartographic Contract Monitor (Topographic) POSITION CODE: 09-0336-19 THE POSITION IS: x NEW REVISED -7 - OUS Position,Title 1 Class Title ) Class Code I Position Co& N/A N/A N/A N/A IMMEDIATE suPE~vIsoR's TITLE Posltlon Code Manager Basic Mapping Program 09-0336-01 MINISTRY DIVISION Natural Resources Lands & Waters Group BRMCH SECTION LOCATION (ADDRESS) Surveys & hlapping Basic Mapping Whitney Block, Queens Park NO OF 1 POmC ‘S SUPERVISED IUCUMBEUTS SUP RVIS- IXCUMNTS 1 DIFZCTL! INDIRECTLY DIRECTLY IND;RECT:! 2 3. PURPOSE OF POSITION (Why does this position exist? State goals, objectives etc.) To monitor the performance of commercial mapping companies working under contract for the Ontario Basic Mapping and Regional Priority ?lapping programs. The activity relates primarily to topographic accuracy and cartographic quality. 3. SLMMARY OF DUTIES AND RESPONSIBILITIES (Indicate percentage of time spent on each significant function. equipment, Indicate scope working conditions, unusual features, etc.) (1) Participates in the preparation of technical topographic mapping specifications, to be used when inviting proposals by commercial 25% contractors and which later will form part of legal agreements 630,000-$500,000 range) by: -detailing the technical standards that will govern contract elements for aerial photography, aerial triangulation, numerical adjustment, photogrammetric stereocompiliation, and reproduction artwork, by referring to generic standards, expanding or modify- ing them to provide more detail, meet local or special require- ments or-use existing data; -researching available cartographic material that will assist contractors; furnishing material diapositives, records as required; briefing contractors on the relative reliability of materials furnished; -participating in the formulation of generic standards, by recommending changes to remedy defects found in the routine of monitoring; -interpreting, clarifying specifications to mapping contractors. (2) IMonitors the performance of contractors working under direct Ministry contract or through other agencies, primarily related to topographic accuracy and cartographic quality by: 50% -examining contractor’s computations and adjustment analyses made during aerial triangulation for conformity to standards (procedures, tolerances, remedial work) ; approving, calling for further information, rejecting, as appropriate; -a- -examining and.,supervising the examination of aerial photographs, map manuscripts and reproduction artwork for conformity to provincial standards (sample examination, field checks), calling for closer examination, approving, rejecting, as appropriate; - recording contractor’s production in the meeting of time schedules and in the furnishing or return of control of map documents and reproduction artwork; contracting delinquents, requiring explanations, re-scheduling, reminding of penalties if applicable; -discussing major issues with supervisor; items such as penalties or where costly remedial work must be paid for outside the terms of the contract; recommending best means of resolving problems and indicating likely costs. (S) Performs technical supervision and evaluation of the performance. of assistant contract monitors, teams by: who frequently work in small -assigning daily tasks, keeping track of timeliness, conduct, attention to duties ; -evaluating the technical performance, deficiencies, superior 10% qualities of assistant contract monitors, resolving technical problems, advising; -reporting to supervisor routinely and where specially required urgently on the performance and technical capacity of assistant contract monitors, recommending commendation or remedial action. (d) Responsible for the routine performance (shared with peers) or cartographic duties supporting the mapping programs, largel) through the use of subordinate or clerical staff, such as: 10% -supervising the preparation of indexes to production and miscellaneous program artwork; -information to and liaison with map distribution outlets; -detailed checking and initialliag of invoices to certify receipt of goods and services and the assignment of expenditure codes. (5) Other duties as assigned. 5% 1. SKILLS .AND KNOWLEDGE REQUIRED TO PERFORM THE WORK (State education, training, experience etc.) Post-secondary education in cartography preferably with a diploma from a College of Applied Arts and Technology or equivalent formal education; considerable specialized experience in cartegraphy and graphic arts; the ability to interpret and convey detailed technical specifications to commercial surveying and mapping contractors. 5. SIGNATURES Immediate Supervisor DATE Minis try Official DATE DA MO YR “Brian Jackson” 01 01 79 I ;; I ;si I Y’; yplease type supervisor’s name) (please type official’s name i 4 title) I Brian Jackson 1 General ?lanager Mapping Services -9- 6. LL.-\SS TITLE CLASS CODE OCCUPATIONAL GROUP NO EFFECTIVE DATE Cartographer 4 DA MO YR .. 12846 T-S-02 01 01 79 I have classified this position under authority delegated to me by the Deputy Minister and in accordance with the Civil Service Commission classification standards for the following reasons: A Responsible, professional cartographic work performed under general administrative and a mini of technical supervision e.g. monitors topographic and cartographic quality of maps done under contract by commercial mapping companies. B May visit contractors to sign for work on department’s behalf and to enforce terms of contract such as corrections, quality, registration on final printing of maps, using judgement as to what may be rejected without jeopardizing future services of contractor to the department e.g. recording contractor’s production in the meeting of time sched- ules and in the furnishing or return of control or map documents and reproduction artwork; rescheduling, contacting delinquents, requiring explanations, reminding of penalties if applicable. C Maintain an assessment of contractors ability; report results to supervisors e.g., discussing major contract monitoring issues with supervisor. SIGNATURE OF DATE (Please type evaluator’s AUTHOR1 ZED “R. C. Fletcher” DA MO YR name) I EVALUATOR 26 03 79 I I R. C. Fletcher ‘* Exhibits 7 and 8 are Management documents for each of the successful incumbents which list certain additional selection criteria developed for the job by Mr. Jackson, and taken at least in part from Exhibit 14. A part of Exhibits 7 and- 8 list selection criteria developed for the job in the following terminology: 1. Production experience The experience must be in units directly concerned with the production or monitoring of accurate maps, above the technician level. Variety an asset. Minimum total experience in field five vears. - 10 - 2. Akility to interpret and convey detailed technical specs to others. Demonstrable experience required. Clarity of expression to be assessed. 3. Cartographic educational courses vary widely, and must be individually assessed. Armed Forces tuition or College of Applied Arts are preferred. In general Arts University courses are suspect .” ter- Exhibits 7 and 8 were prepared in advance of the in views and were completed by the Selection Committee after the interviews had taken place. Exhibit 7 is the Management document pertaining to Steven Smith, and Exhibit 8 the Management document pertaining to Costas Karpetas. The rationale for the selection of Steven Smith appears in Exhibit 7 as follows: “1. Mr. Smith has been working on the Basic Mapping Program at many levels for close to 4 years. He has been performing the duties of Cartographic Contract Monitor (Topographic) for close to Z years. He is the only candidate who has this important experience. His total years of experience exceed 6 years. 2. It has been amply demonstrated in his work on the mapping program, that he has the ability to interpret and convey detailed technical specs to others, clearly. 3. Xr. Smith’s cartographic education was at Seneca College of Applied Arts and Technology. An ideal choice for the position.” - 11 - The rationale for the selection of Costas Karpetas in Exhibit 8 rears as follows: 1. Has considerable production experience at all levels and in most of the areas required for this position. Has had similar monitoring experience, although not in pure cartography. At least 19 years of experience in the mapping field. _) -. Definitely has ability to interpret and convey detailed te%idcal specs to others. Can do it clearly. Has proved this over the years in many ways including discussions with Geologists concerning the content and presentation of geological features on maps, etc. 5. Cartographic education commenced with on job training and was completed with “inhouse” training and exams in the Dept. of Mines, (now, Natural Resources Cartography Section). & ideal choice for the position. As a result of the job posting on April lOth, 1979, 12 Applicants submitted written applications. Seven Applicants were interviewed by the three man Selection Board .* and the evidence is clear that it was Brian Jackson who made the determination as to which of the .4pplicants would be granted interviews. Mr. Jackson prepared a preliminary assessment on each Applicant which is produced in part in Schedule “A” to this i\ward. - 12 - Mr. Jackson prepared the preliminary assessment from each individualwritten application in conjunction with the Job Specification and Allocation Form (Exhibit 14) and from his personal knowledge of the Applicants. On the basis of that preliminary assessment, Mr. Jackson made the decision not to grant an interview to Ms. Cheng. Nr. Jackson immediately called the Grievor into his office and explained that she would not be granted an interview. Mr. Jackson testified that he told the Grievor that she did not have production experience nor did she have any monitoring experience. The evidence of the Grievor is that the meeting in Mr. Jackson’s office lasted approximately 5 to 10 minutes. Although there is some variation in the testimony as to what took place in Mr. Jackson’s office, both Parties are in agreement that the essence of the conversation was Mr. Jackson’s assertion that the Grievor was not qualified for the job in question. Having reviewed the evidence in detail, this Board is of the opinion that the Grievor has failed to establish that she was the superior candidate for the position. In this instance, it was not sufficient for the Grievor to demonstrate relative equality with Messrs. Smith and Karpetas, both of whom had con- siderably greater seniority. For the Grievor to succeed, she must establish superior qualifications and ability within the meaning of Article 4.3. The evidence is clear that at the time of the competition in 1979, Mr. Karpetas was already classified as - 13 - a Cartographer 4, and Mr. Smith although then classified as a Cartographer 3 had been doing the work of the job in question for some 18 months. In April of 1979, Smith had considerable monitoring experience and both Smith and Karpetas had extensive production experience. Ms. Cheng had no production experience in Government and her production experience was limited to University training (then somewhat dated). From the Grievor’s evidence she had “assisted” University Professors in the production of topographic maps but had not produced topographic maps from start to finish. Admittedly she did have some monitoring experience, however we find that her experience was of a limited nature which was deemed inadequate for the job in question. In addition, the Board is of the opinion that Ms. Cheng had certain difficulties associated with oral communication in the English language. The ability to communicate effectively with Commercial mapping Companies personnel was an essential ingredient of the job, and was reflected in the job posting. The more interesting issue in this Grievance is the allegation of “unfairness” in the selection procedures. The Board has several concerns in this regard. There is no doubt that Management has the right’to refuse an interview to an Applicant. If the Employer adopts that position, it is only fair that the job posting should be reasonably complete in its terminology without the necessity of relying upon substantial additional documentation. All Applicants should be advised of the functions and responsibilities of the job in question. This - 14 - can be accomplished by holding a series of initial or screening interviews to ex$lain to each .Applicant the job criteria. We are of the opinion that had the Griever been invited to an interview, Management would have had an opportunity to explain the functions of the position, and hence this Grievance mighthave been avoided. In the circumstances, failure to grant an initial interview inevitably leads to allega- tions of subjectivity and discrimination. There is no doubt that had the Griever been granted an interview, her knowledge of the position and her relevant experience in relation to that position could have been considered more objectively. The evidence is clear that Mr. Jackson did not consider the Griever’s experience in post-graduate studies at American Universities. In addition, he testified “I knew nothing more than from her application about her experience -- I concluded she had no relevant experience”. An interview would have resolved what was undoubtedly an error in judgement on the part of Mr. Jackson. ?he evidence is clear both from the wording of Exhibits 7 and 8 and from the oral testimony of Messrs. Jackson and Dawson that there was a very definite anti-University bias in this competiti Mr. Jackson testified that “University courses were suspect” and “I would consider that someone from a Community College has a preferrable training -- 1 was concerned the Griever didn’t have a degree in Cartography”. This Board adopts the rationale of . il - 15 - Professor L. F. Guelke who testified on behalf of the Griever -- “I am horrified %y point 5 in Exhibits 7 and 8 -- it indicates a complete lack of awareness as to what Universities do”. It is the opinion of the Board that the post-graduate Universit) training of Ms. Cheng would qualify her in accordance with the wording “or equivalent formal education” referred to fin the job posting. It is our view that the Grievor’s extensive University post-graduate experience was neither appreciated nor understood by Mr. Jackson. Mr. Jackson also appears to be unaware of the fact that no Xorth .Ymerican University offers a degree in Cartology. The Board has concerns about the evidence of Fred Dauson, the Manager of the Cartography Section of the Ministry in his statement that “he doesn’t consider experience to be experience gained in school”. In our view, that opinion is not an intelligent assessment having regard to the unique experience gained by 3s. Cheng in her successful completion of five post-graduate cartography courses at-the University of Wisconsin. We accept the evidence of Professor Guelke that “the University of Wisconsin is the best school in North America without a doubt in Cartography”. At the same time, we agree with the statements of Vice- Chairman Beatty in an earlier .4ward of this Board referred :o in Morton et al and the Ministrv of the Attorney General, 11/Y; (Adams) at p. 16: 1 - 16 - “There are, two other features of Article 4 which bear upon the resolution of this grievan?e and which, therefore, merit our comment. In the first place we would draw attention to the fact that by its terms Article 4 instructs the employer to give ‘primary’ consideration in effecting a decision under its terms, to the qualifica- tions and ability of the applicants to ‘perform the required duties’. That is to say not only must those two factors assume a. predominant position in tie employer’s selection under Article 4, but as well those factors must relate to the actual duties of the position. In short it is the applicant’s qualifications and ability to perform the required duties of a Data Entry Operator 5, and not their ability and qualifications in the abstract that is the primary and material consideration that should underlie a determination made under Article 4.” We are of the opinion that although Ms. Cheng’s qualifications from an educational standpoint were impressive, they were somewhat in the abstract in relation to the job in questions. In fairness to !4r. Jackson, we found him to be perfectly honest and-straight forward in his testimony, but‘somewhat misinformed on the value of University training in Cartography, and also misin- formed on the value of professional affiliations. However, on the evidence we cannot find any c*onscientious attempt on the part of Mr. Jackson or any Ministry official to discriminate against the Griever Hopeful_ly, the appropriate Ministry officials will take immediate steps to familiarize themselves with the curriculum presently offered at leading North American Universities in which Cartography is a subject of instruction. Having expressed these reservations concerning the fairness of the selection procedures, we must now determine whether there has been a basic “miscarriage of justice”. AS Vice-Chairman Joliffe stated in Cross vs . Ministry of Transportation and Communications, 339/81 at page 16: “The crucial question is whether the rather inadequate methods of personnel selection in this case were such as to cause what might be called a ‘miscarriage of justice’. In our opinion! the grievor’s representative suceeded in showing that the methods used in choosing Mr. Lamb were not the methods which ought to have been used. That, however, is insufficient to establish that the result was wrong. The onus was on the grievor to prove ‘relative equality’. In our opinion it has not been proved. Moreover, it seems probable to us, on reviewing all of the evidence --- incomplete though it may be --- that the eventual result of the competition iras correct.” Although we have expressed serious concerns about the fairness of the Selection Board procedures as it relates to the Grievor , we do not agree that the evidence, when viewed in its entirety, indicates that there has been a “miscarriage of justice”. We believe that it would be unrealistic to make an award which - 18 - would order a rerun of the competition at this late date (some three years aftef the competition). The two incumbents have had three years to familiarize themselves with their jobs, and, have already taken full time semester courses at Humber College during the intervening years. In our view the Griever would be at a substantial disadvantage in any rerun of the competition. We would also agree that the results of,the competition were correct in relation to the Griever. Another factor which must be balanced against the “fairness” of the competition in relation to the Grievor is the uncontested evidence of the Griever’s “poor performance” in her present position. Counsel for the Union did not cross-examine the evidence of either Mr. Jackson or Mr. Dawson with regard to the Grievor’s “poor performance”. Mr. Jackson testified “there were problems with her work”. Mr. Dawson described the Griever’s performance “at best, very poor” and “her work with others was very poor”. A further consideration which has been referred to previously in this Award was the Grievor’s noticable difficulty in oral communication inthe English language. Mr. Jackson in his preliminary assessment evaluation rated the Grievor “poor” in the ability to interpret and communicate technical specifications - 19 - and did so from his own evidence -- “it was a language problem;: primarily”. In ou”r view, ‘I the ability to communicate clearly aAd concisely in the English language is an’essential ingredient of the job in question. ,: In the result, this Grievance will be denied. In view4 of the unusual fact situations of this Grievance, this Board recommends strongly that from an industrial relations standpoint’ it would be wise for senior Management to interview the Griever.. for the purposes of preparing a detailed appraisal of the Grievo’r for the position of Cartographer 4, taking into account Ms. Cheng’s extensive post-graduate educational experiences. This appraisal, should be reduced to writing and the results discussed by Management with the Griever in the presence of a Union representative. DATED at Brantford, Ontario, this 3rd day of June, A.D., 1981. R L VERITY, Q.C. -5 VICE-CHXIRWh . . “I dissent” (See pages 22 - 27) R. RUSSELL -- MEMBER “I concur” B _ LANIGAN -- MEMBER _ .. :.:::,:; .,.,.. 1~. - 20 - m (INWSS3SSV .4UVNIWI’tXld1 A.l.l’IIEV.l.lllS -- __ I S ‘3N3H3 - 22 - DISSENTING OPINION While I agree with much of the majority award which sets out the facts very well in this case, I regret I cannot agree with the conclusions drawn in the majority award. Some parts of the majority award I wish to adopt and hence I shall refer to them in this dissenting view. Specifically I disagree with the unfair manner in which the "competition" for the job opening was conducted. That it was a sham conducted in a very arbitrary manner is clear from the evidence as set out in the majority award. There are cases too numerous to mention where the decisions make it clear that where a job posting (which is designed to give employees an opportunity to set out their qualifications for a better job) is not con- ducted fairly or is done in an arbitrary manner, it should be set aside.and a new competition held. I do not adopt the position that the griever's qualifi- cations and ability were superior to the other candidates and therefore she should have been given the job, although on paper this is so. Nor can I accept the proposition that, because of the time lag, the earlier unjust decision should remain in effect. Mr. Jackson, the senior member of management, was clearly biased against the qrievor. Moreover, evidence suqges,ts that he had decided long before the job was posted who would get the job, as he had arranged to train Smith to do the job over an extended period of time. And the evidence shows that nothing was going to be allowed to stand in the 'way of L%. Jackson's pre- arranged decision. - 23 - Various pieces of evidence point to the fact that the job posting was only a sham to legitimize the selections made in advance. The-majority report on page 14 quotes Mr. Jackson's testimony as follows; "I know nothing more than from her application about her experience --- I concluded she had no relevant experience." The report goes on to say: "an error in judgement on the part of LHr. Jackson." Was it? I do not believe this was an error in judgement any more than Mr. Jackson's attitude toward University training and degrees was an error on his part. The importance of University training is too well known and particularly post-graduate work at the lead- ing University in North America in Cartography, a subject in which Mr. Jackson is the Manager of the mapping section of the Xinistry. Nor do I believe it was an error in judgement that Mr. Jackson who, according to his own evidence,knew nothing about the qrievor or her experience except what was on her application - yet he refused on the basis of this limited knowledge of the grieve to even give her an interview for the job as advertised in the posting. With Mr. Jackson's limited, one might even say lack of knowledge of the qrievorrs abilities and past work experience and performance, he called her into his office and told her (a) he was not going to interview her for the job she had applied for, and (b) that in his opinion she wasn't qualified for the job in question. Of some importance is the fact that Mr. Jackson at this in time arrived at the conclusion he did without consulting Mr. Dawson, the qrievor's supervisor, or anyone else. - 24 - A matter which gave the majority of this Board some difficulty was the fact that Mr. Jackson, yes and Mr. Dawson, also rated the griever's performance on the job as poor. This seems odd in the light of the fact that she received merit increases, and nothing on the record points to her work as being "poor". On the other hand, surely Mr. Jackson had to come before'this Board with some reason for denying the grievor even an interview, let alone the job. It is a matter worthy of note that the majority report points out that "Counsel for the Union did not cross-examine the evidence of either Mr. Jackson or SW. Dawson with regard to the Griever's 'poor performance'." It seems logical to me that if one has concluded from the evidence that the actual posting of the job was only a cover-up, a sham: i.e., that management was only pretending that the job was available, but in reality it had been decided in advance, then it would have been futile to cross- examine either Mr. Jackson or Mr. Dawson on what they said was the griever's "poor performance". _ I wish to associate myself with that .part of the majority. report which reads: "All applicants should be advised of the functions and responsibilities of the job in question. This can be established by holding a series of initial or screening interviews to explain to each applicant the job criteria. . . . An interview would have resolved what was undoubtedly an error in judqement on the part of Mr. Jackson." If it was an error on LM.~. Jackson's part, then it should be corrected now. If it was an arbitrary unfair decision on his part, it also should be made right now.. - 25 - The evidence is replete with small ~(some not so small) examples of the griever's qualifications for the job not being properly evaluated. Just one such example shows up in the cross- examination of M?z. Dawson. Question: You therefore didn't look at school? Answer: I didn't decide who was to be interviewed. Question: Therefore you never turned your mind as whether the grievor could do the job? Answer: I wasn't asked to. (my emphasis) One could continue with other quotes from the evidence, but is it necessary? The majority award states in part: "We believe that it would be unrealistic to make an award which would order a rerun of the competition at this late date (some three years after the competition). . . . In our view the Griever would be at a substantial disadvantage in any rerun of the competition." It is my submission that the grievor could not be in a worse position than she is in presently. At this point I should like to refer to the language used in the unanimous decision in 272/81 McNamara case, which reads in part: "Having determined that the selection procedure used in this case was seriously flawed, we turn to the question of what relief ought to be granted to the qrievor." Surely in the circumstances of this case (Cheng), the selection was "seriously flawed", and havinq determined that fact, we should - 26 - strive to find as good a solution as possible in the circumstances. The alternative is to permit decisions to stand no matter how arbitrarily arrived at. Justice delayed must not be perceived as lack of justice because of the delay. While this Board could order a new posting and competi- tion despite the lengthy period of time which has elapsed, I am inclined to look elsewhere for a solution to this difficult problem. While I appreciate the differences as between this case and 9/78 Quinn case, I believe we could adopt the method used in that case. The Quinn case also was delayed over an extended period of time, thereby making a decision of how to dispose of the matter a difficult one for the Board. Here also it was found there were defects in the manner in which the competition had been held. In this case both parties requested that the Board only make a deter- mination as to whether the management was at fault or not, but not to go beyond that at that time. This the Board did, in the following language: "In the result, the selection process used by the Ministry as part of its obligation under Article 4.3 to evaluate the relative qualifications and ability of the applicants was inadequate in that it failed to elicit in a systematic fashion sufficient inform- ation to permit a fair and reliable judgement about the candidates." This statement fits exactly the situation in the present case (Cheng It is clear from the agreement between the Ministry and the Union that once the Board in the Quinn case made a determination - 27 - as to who was at fault, the parties themselves were prepared to work out a fair and agreed-on settlement. It is my view, and I would so find that, before making E final decision that the job should be re-posted and a new competi- tion ordered, that we remain seized with the matter and direct a further hearing to determine if the parties can find a mutually satisfactory method of correcting the injustice done to the griever . Ross Russe