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HomeMy WebLinkAbout1981-0570.Mepham.82-08-12570/81 IN THE MATTER OF AN ARBITRATION Under THE CROWN,EMPLOYEES COLLECTIVE BARGAINING ACT Before iHE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Griever: For the Emoloyer: HearinK: OLBEU (Bob Mepham) and Crievor The Crown in Rix:ht of Ontario (Liquor Control Board of Ontario) Emplover S.B. Linden, O.C. Vice Chairman P. Craven .Llember J.H. ,Morrow Yeriiber M.A. Green, Counsef Golden, Levinson R.J. Drmai, Counse! Hicks, Xlorley, Hamilron, Stewart & Storie April 16. 1982 - 2- This is the grievance of Mr. Bob Mepham, who alleges that he was improperly denied promotion to the position of 'B' Store Assistant Xanager (Liquor Store Nanager 2) by his employer, the Liquor Control Board of Ontario. By circular dated May 19th, 1981 and addressed to 'all employees at a list of Toronto-area stores, tk employer so1icite.d applications "for promotion in the Toronto area" to the disputed position ("Job Posting #910", Exhibit 3). m. Mepham appears as one among the 112 applicants who responded ' to this posting in-a list of qlicants dated June 23rd, 1981, Exhibit 4. On September lst, 2981, then employer issued alother circular, entitled "J~I Posting #910 (announcement)", Exhibit 5, which communicated tiat four promotions had been awarded, listing the successful applicants and their seniority dates. Four-promotions to-&he post of n'B' Store Assistant Manager 2" had been made. Mr. Mepham was not one‘of these four, and he had greater seniority than any of them. On September 18th, 1981 he grieved the denial of promotion. A grievance meeting was held betmeen the parties on December 18th, 1981 and by letter of December 24th. 1981, Exhibit 2, the employer denied the grievamce saying, "it has been decided that the grievor as evidenced by recent performance was not qualified for promotim at the time of the selection". ??le grievance was subsequently remitted to this Board for determination, and a hearing wz held on April 16th, 1982. &, ~- 3 - The relevant provision of the Collective Agreement is Article 16.6(a): "Where employees are being considered for promotion, length of service from appoint- ment date will be the determining factor provided the employee is qualified to perform the job." As noted above, Wr. Plepham was senior to all four successful candidates for the promotion. (Ten other unsuccessful .candidates were senior to Mr. Mepham, a fact whose bearing we consider later-in this award.) He chose at the hearing to challenge the promotion of the most senior of t!-te successful candidates, Mr. A. E. Warwick, who, we are informed, had been notified of the hearing.% heard no evidence as to Mr. Warwick's qualifications for the position, but on the language of the Article quoted above, this is not material to .,..Y .,,.. . . the determination of the grievance, The.Article requires that the most senior candidate who possesses the requisite qualifi- cations is to be awarded the promotion. The clear implication is that candidates are to be considered in the order of their seniority. The first candidate (i.e. the one with the greatest seniority) who qualifies for the job is to'be awarded the first vacant position, the next the second vacant position and so on until all the vacancies have been filled. It follows +hat if Nr. :!epham was qualified for 'ue position he was in line to receive it even before :lr. !jarwick, who had less 5 - 4- whether Mr. Megham was qualified for the position of 'B' Store Assistant Manager (Liquor Store Yanager 2). The parties agreed that the onus is on the grievor in the first instance to establish a prima facie case that he was qualified for the promotion. The onus then shifts ‘to the employer to show that in fact the grievor was not qualified. In the ordinarycourse of such matters, then board would expect to be presented with evidence establishing what qualifications the position requires. It would then be up to the grievor to show that he possessed these qualifications. Then the employer would seek to demonstrate that the grievor was not qualified or, if in the employer's view the grievor had failed to satisfy the initial onus, it might choose to present no evidence and ask the board to find that the grievor, on his or her own showing, was unqualified. In this case, however, the matter was complicated by the employer's submissions. First, that there was no Collective Agreement requirement that there be qualifications for the job (although in its submission the grievor was required to show he was qualified); second, that if there were qualifications it was within the unfettered discretion of the employer to determine what they were; third, that in any event there was no C'oliective Agreement obligation on the emc:oyer to disclose .-Y L5 - what '&e qualifications were if in fact there were any. Further complications were introduced with the employer's related submissions going to the selection procedure. First that there was no requirement that there be any such procedure: second that if there was to be a procedure the employer had unfettered discretion to design and implement it: and third that this board lacks jurisdiction to enquire into the adequacy of the procedure employed if in fact there was any procedure employed. -Before 'moving to the evidence about P!r. Nepham's qualifications, then, it is necessary to consider these submiss ions. Are Qualifications Required? 7 The first question we are called upon to decide here is whether, on the langxiage of this Collective Agreement, it is necessary that *here be qualiiications attached to specific positions. On the language of Article 16.6(a), quoted above, it is plain that we must answer'in the affirmative. The article requires that the senior qualified candidate receive the promotion. If there were in fact~no requirement that a Tcsition carry qualifi- cations with it,, it would necessarily folloij that the most senior applicant automatically receive the promotion; But it is a comx3n rule of construction that Collective >greement ?rovisicns are to beinterpreted so as to gi>:e meanin< to --'leir - 6- words. The parties obviously intended (and indeed it is a matter of basic common sense) that there be qualifications, and that unqualified candidates, no matter what their seniority, not be promoted. We find that the Collective Agreement requires that there be qualifications attached to positions. The second question asks, in effect, how those qualifications are to be determined, and whether this Board has jurisdiction to enquire into the adequacy of the employer's determination of what qualifications are to be required of applicants for a position. Counsel for the employer directed us to the "Management Functions" provisions of the Collective Agreement, and in particular to Article 3.1, which mirrors the language of the Crown Employees Collective Bargaining Act, Section 18, and provides as follows: "The Union acknowledges that it is.the exclusive function of the Boards to m,a.naget which function, without limiting the gene?%lity of the foregoing, includes the right to determine, (a) employment, appointment, complement; organi- zation, assignment, discipiine, dismissal, sus- pension, work methods and procedures,, kinds and locations of equipment and classificationof positions; a,nd.,, (b) merit system, training and develcpment,. appraisal and superannuation, the governing principles of whrch are subject to review by ^,e employer with the bargaining agent, and such matters will not b.e the subject of collective bargaining nor come within-'L!e jcris- diction of a Board." - 7- On this language, it was s.ubmitted, the employer enjoyed an unfettered discretion to determine what qualifications were appropriate for appointment to the various positions. Counsel for the employer pointed to the absence of any provisions requiring that the employer tact "fairly" in making such determinations, and argued that this Board is prevented in law from imposing such a requirement in the absence of plain language in the Collective Agreement. Up to a point, WB accept these submissions. There is no doubt on this language that it is the, exclusive.province ,, of the employer to determine what qualifications should be required. In our view, however, the employer's exercise of that right to determine is qualified in some respect. First, since, as we have already found, the Collective Agreement requires that there be a set of qualifications associated with a position , we do not believe that the employer isfree, to exercise his right by determining that there are to be nr~ qualifications for a particular position. Second, the exercise of the, right is qualified by the rules of natural justice. The employer must not make its deter- mination arbitrarily, discriminatorily or in bad faith. iYi.nally, with respect to the question of "fairness"-;we do not find that the current jurisprudence on this issue absolves the employer of the more limited duty of reason- ableness. Thus is was determined long aqo ',at in cst3blis!~i::c t3 e :?!;a 1 L _ ;'ications for.a'?ositlbn, t!!ie i:?:~)loyer zus: t&e - i -a- into account the nature of the positions and avoid taking into account irrelevant considerations. See, for example, the well known cases of St. Lawrence Seaway Authority (1969) .., 23 LAC 156 (Weiler) and.Polymer Corp. Ltd. (1968) 19 LAC 38~6 ."~ (Wea.therill), in which,it was determined that thetests used to assess candidates' qualifications for a posi~tion must be relevant to the position: if the tests must be' relevant, so a fortiori must be the specifications of qualifications themselves. Finally we turn to the question whether the employer is required to communicate to candidates what qualifications I.. are required for the position for which they are applying. We must say we were quite surprised to hear counsel for the employer insist.that there was no such obligation on the employer, particularly in light of his equally insistent claim that the grievor was obliged to show he met the qualifications. In any event, this argument is easily disposed of on the language of the Collective Agreement. Article 16.5(a) governs job postings and provides as follows (emphasis supplied): .I "If a new job classification within the bargaining unit is created or a x3aner.t vacancv occurs in an exjstinq job classifi- cation berore ~n~.~~tmq appilcat~o~~s from La?? the qecgraphic area as speciiied, notice of such .new job or v.acanc? for a -9 - period of ten (10) working days during which employees within such area who have comoleted their orobationarv oeriod mav wiy- The notice shall stipulate - oualifications, classifications, salary range, department and location concerned." We find that when a positionis posted.pursuant to this Article, as occurred in the present grievance, the employer ins required to include on the posting a.statement of qualifi- cations for the position. We note that Exhibit 3, the job posting at issue here, fails to satisfy this requirement, It is accordingly in breach of Article 16.5(a). It should qo without saying that the employer cannot be' permitted to rely on this breach, so as to continue to maintain that it need not supply the particulars of the qualifications to the grievor. Is a Selection Procedure Reouired? We have already stated that in our view the language of Article 16.6(a) clearly contemplates that candidates are to be ranked by seniority and then examined in turn to determine whether they meet the qualifications for the position. As candidates are found, in order of seniority, to be qualified, the vacancies are filled. It must be emphasized that on this language there is no question of comparing candidates one with another, or asking whether one candidate is more qualified than another. The plain language of the Article requires +&at Lhis mode of ~. filling vacancies be adhered to, and it PlaLnly fol?ck.s.t!!at - 10 - a selection procedure must be devised that will ensure such proper consideration. It follows, first, that there must be a procedure, and second, that in designing it the discretion of the employer is fettered to the extentthat .the procedure must ensure that the requirements of the Article are met. The employer's discretion is similarly fettered by the requirements of natural justice discussed in the preceding section, and by the same requirement of relevance. This Board is of t6e view that it does have .jurisdiction to determine whether the selection procedure employed meets the requirements set out above. Of co*rse, the employer retains the right to design a procedure that suits its administrative convenience, so long'as the procedure is one that will satisfy these requirements. We shall have more to say about this matter below, once we have consrdered the evidence in the current grievance. Evidence as to aalification - The grievo:, Mr. Mepham, joined the staff of the LCBO in 1969. He was employed first at the Avenue Soad sto're, transferred to a store at Eglinton and Laird in 1977, and transferred.to his present store, $58~4 (Finch'and kCallui) in 198i. Ee e:<pericnced the usual progress.ion thro-gh k!e~-salary ranges, reaching the maximum salary in his current clsssification in July, 1979. He began his employment with the LCBO as a Clerk 2, and is currently a Clerk 4. This is a bookkeeping position. His duties involve keeping reports of the store's cashflow and sto'ck, "cashing,,out" the store's cashiers, and filing weekly and monthly reports of sales and stock with the LCBO's head office. His current store is classified as a 'C' store, which means that it has no Assistant Manager. A 'C' store has a Manager, and a 'B' store, by contrast, has a Manager, an Assistant Manager, and a Clerk 4 bookkeeper, along with a complement of Clerk 3'5, Clerk '2's, and SO on. m . ,...L . Mepham testified that in the course of his career he has served as Stors~Manager or Assistant Manager in an acting capacity on a number of occasions. Prior to April, 1980, his current store was classified 'B' and he regularly served as acting Assistant Manager and acting Manager on Thursday or Friday evening shifts. When the store was reclassified as a 'C' store he continued to have charge of these shifts on a regular basis, in the capacity of acting Store Manager. Moreover; he filled in as acting Manager when the then Store Xanager was away sick or on, vacation. Plr . %epham's employee appraisal reports, dated September, 1979 and September, 1980 were submitted as Exhibits 6 and 7.respectively. ('2 furtier annual appraisal for 1981 is.discussed below.) T2e 1979 appraisal showed him as "above average" on three of'L'e t.tl.irtcrn catc~orles, tind "average" on c!?+z othrrs. 'me l"SO - 12 - appraisal was identical in this respect. The Store Xanager-. at the time, Mr. Cramer, commenti& on the 1979 appraisal, "Mr. Mepham performs his duties 5-n a satisfactory manner. He gets along well with his fellLaw employees, and very courteous with the public. At rmagimum salary in his classifi- cation as a Clerk IV." On the IL.980 appraisal he wrote, "XX. Plepham gets along well with his fell? employees, and very courteous with the customers. Bas a good knowledge of store operations. At ma&nnu salary as a Clerk IV." The District Supervisor wrote on the 1979 form, "Ifir. Mepham (sic) is a mature employee, whose work is acceptable in his present classification. He co-operates fully, contributes to the operation~of this small conventional store and is receiving maximum salary for present position. Recommend no change at present time." The District Supervisor wrote on the 1980 form, "Mature,,dependable employee with a hearing problem who believes that this is holding him back from becoming an .I~. Assistant manager. He has requested a transfer to another store for further evaluation. I concur. Recommend no change at this time." (It was no part of the employer's argLr,ent in this grievance that Kr. Kephan's hearin#played a part in the decision to deny his promotion. It therefore did not fall to us to determine whether it interfered with his ability to perform his job. ??!r . !,Ie$an wears two hfaz<iis aicls, a?.d - 13 - the questions put to him by counsel.) Since Mr. Mepham's other evidence was directed to responding to what he perceived might be the contrary evidence of the employer (and we deal with this below), this amounted in essence to his evidence that~he was qualified for the position of Assistant Manager for which he had applied. It will be recalled, first that there eqists an initial~onus on the grievor to present a prima facie case that he is qualified for the position, and second that the employer had failed in its duty to supply particulars oft the qualifications required for the position. As will become apparent, at no point in these proceedings was the employer able or willing to Trovide . the grievor or, for that matter, this Board, with a statement of qualifications. The Board has therefore to determine whether :Ir. Mepham has satisfied the initial onus, without the benefit of having.the employer's statement of required qualifications before it. We are satisfied on the evidence, having regard to these circumstances, that ?lr. Mepham has shown prima facie grounds for'considering him to have been -- qualified for the position of Assistant Xanager. In Tarticu~lar, his evidence that he has filled this position in an acting capacity (and indeed has acted.as :?anager as well) indicates t:,at he is fanCliar with the requirements of the job and has shown himself able to carry then out. :le have also taken ix20 - 14 - account the evidence of the job appraisals, including the comment of his Manager that he "has a good knowledge of . store operations". On this evidence, we are satisfied that the onus must shift to the employer to show that Mr. ;4epham was not qualified for promotion to Assistant Manager. We have already alluded to the fact that in the course of I4r. Xepham's evidence, counsel for the Union intrcduced a third performance appraisal, dated October, 1981, Exhibit 8. We note that this document was produced after the decision to deny Mr. Mepham the promotion he sought had already been . taken, and that it was introduced into evidence to offer ilr. ,Yepham an opportunity to speak to two incidents to which it refers, incidents that took place before the'promotion decision was made and which, the Union anticipated might have been the grounds upon which the denial decision was taken. The first of these incidents had to do with errors in the store reports that were found by head office auditors. We are satisfied on the evidence of :4r. :lephan and the other witnesses that this problem arose out of a simple misunder- standing, and that the "errors" complained of occurred, to the extent that they were Yr. !.lepham's responsibility at all, >~cause t!!e auditors examined a report that had not yet~befn completed and checked. ;Je fi?d Llat I;iis incident dces net - 15- or his suitability for promotion. The second incident had to do with an alleged improper procedure in "cashing out" a cashier. We heard a great deal of evidence from all witnesses about this incident, and we note that the employer's witnesses, the current Store Manager and the current District Supervisor, disagreed in their account of what the proper procedure should have been. In any event, we find that the procedure used.by Mr. Hepham at the time of the incident was the procedure in common use by employees at his store (including the Store Manager) and probably at other stores as well. We are satisfied on the evidence that this incident does not reflect adversely on Mr. Plepham's qualifications or- suitability for promotion to the job of.Assistant Manager. Raving made these findings of fact, we do not consider the appraisal of October, 1981 to have any further relevance to the determination of the matter before 'US . At this point it is necessary to refer to a procedural submission placed before us by the parties. The Union took the view initially that the only grounds upon which the employer relied in determining that flr. Xepham was not qualified.for tie :>romotion were the two incidents cited above. It was t??e Unicn's -c - 16 - having restricted itself to these two incidents. The Board then proposed hearing evidence'as to whether or not the employer had indicated at some earlier stage of the procedure that'it rested its denial on these two incidents alone. Counsel for t&e employer objected to this procedure however, and submitted that under no circumstances could the employer be?estopped from raising additional grounds for denial, no matter what had transpired before. Counsel asked,that we determine this quedtion in the hypothetical. We indi.cated our reluctances to deal with questions of this sort on purely hypothetical grounds, but ruled unanimously that in our view circumstances could hypotheti'cally a'rise whereby the employer was estopped from introducing new grounds at the hearing stage in a denial of promotion grievance. We .indicated our reluctance to hear evidence about what had transpired during ..:+ i the grievance procedure, particularly as it might,relate to attempts at settlement, but held that if an employer were to indicate in the course of the grievance procedure that certain matters were the sole reasons for its decisions, "Aat this would be evidence in .the nature of a response'to the grievance, that it would properly be before the Board, and that th,e Union would be entitled to rely on this statement by &!!I? e!!@oyer . Having so ruled in L\e hypothetical, we ?roceeGd to hear evidence as to whether this employer had so restricted itself in this :;ric\~2ncc, *2?nci WC. fc::rr? that i.: ?c,:.'. ,nlylt. I I i - 17 - It fell next to the employer to rebut the griever's case that he was qualified for the position. Its first witness was the grievor's present Store -Tanager, Kr. Cameron. i xr . Cameron supported Wr. Mepham's evidence on the "cashing out" incident, and with respect to the audit errors-incident he testified that the errors reported.in Exhibits 10 and 12 were either not clearly traceable to the grievor, or were "the sort of.small error you see all the.time~"; saying, for example, of one df them, "it is not unusual for this error to occur, every store will have. that". He acknowledged that the errorscould have been Mr. Nepham's or the typists, and that it was his responsibility to check the reports. Mr. Cameronwas asked in cross-examination whether he knew Xr. Mepham was applying for the promotion. His reply is informative: "I gave him and.Mr. McHugh and Mr. McPherson the notice of the posting. They were all qualified." (Emphasis supplied.) Mr. Cameron was shown a letter hehad written to his Area >lanager in August, 1981;complaining about Xr. Kepham, Exhibit 11. He testified that he had written it because Of criticism and reprimands he was receiving 'from head office arising out of the incidents referred to earlier. We find on 14r. Cameron's evidence that Mr. Xepham bias not particularly at fault in these incidents, and that the letter of complain: bias therefore ill-founded. I&? found \!r. C2neron to be a _Erzzk .?!Y1 candi:! 'wi'-T!e5s. ',:I2 concludf2 on iI15 c*:it;2nc? cat h.L.! considered Mr. Elepham to be qualified for the promotion, and. that none of the incidents he related has any bearing on the question of Mr. Mepham's suitability or qualifications for the promotion'. We note that Mr. Cameron was not consulted as to whether Ilr. Mepha,should or should not be promoted. The employer's only other witness was 'the District Supervisor in the griever's, district, Mr. Fletcher. Y?. Fletcher gave evidence aboutthe audit and "kashing out". incidents referred to earlier. In some respects his evidence was in.conflict not only with that of the grievor but with that of Mr. Cameron as well. In light of Mr. Fletcher's general demeanor as a witness, we are not inclined to adopt his versions of these occurrences. In any event, Mr. Fletcher introduced no new incidents that might go tq,,fhe question whether th' grievor was qualified. He was the only witness who had actually been present at the selection meeting where.the grievor's application was denied, and he appears to have been the only person at that meeting who was at all familiar with the griever. Fe testified that he had not seen Mr. Cameron's letter,‘Exhibit 11, prior to. that meeting, and so we must assil%e that it played no ?art in the determination. Similarly, he had not seen the "follow-up audit report", Exllibit 12, which is in any event dated after CLe determination ~;;a* made. !ie conclu?e the:eEore, that at tie tine IX. !leph<am's application for ~~roco:icn was consi?ered. ::lcre were no well-fc;:ndc:! c:;73!a::?t5 3hoct his ~erfor::t.~s3re -19 - within the knowledge of the selecto.rs. We find that the employer has failed,to show that we 'should overturn Hr. Mepham's & facie claim that he was qualified, and indeed that the only employer witness who testified as to whether or not Mr. Mepham was qualified - Mr. Cameron - said that in his opinion he was. We concur in that view. We find that ~Mr. Mepharn was qualified for the position of Assistant Xanager, subject to our earlier reservatio&'about not having a formal statement of qualifications before us. The Selection Process - On the evidence we have already reviewed, it is apparent that' the employer violated article 16.6(a) in failing to promote Mr. Mepham (whom we found, with the reservations already noted, .,. to have been.qualified) .before promoting Mr. Warwick, who was a less senior employee. In order to see wherein that violation arose, we~must now turn to the evidence we heard about the process undertaken by the employer to select employees for promotion under Job Posting $910. The only evidence before us on this matter is the testimony of Xr. Fletche,r, which can be sumnarized as follows: A meeting was held of the seven District SuPervisors in the area to which the Posting was rel*vant, and tieir ;\:ea !lanager, a !!r. . -20 - have before them a statement of the qualifications ~for the posted position (Mr. Fletcher testified that there had at some indeterminate time been a circular issued listing these qualifications, but it was not before the selection meeting, nor did he recall.when the circular was issued, which circular was involved, or when he had last read it). Nor., it would appear, did the selectors have before them any .documentation as to the qualifications of the various candidates for the 'position. Apparently the Area Xanager read the names from the list one by one, and the District Supervisor. in charge of the store where each of the applicants was employed gave his recommendation as to whether or not the candidate should be promoted. As Mr. Fletcher put it, 0, "basically all thathappenedwas as we went down the, list the Supervisor would say, 'I recommend (or) 'I don't recommend'". When Mr. Mepham's name came up, f4r. Fletcher said,"not recommended". He could not recall whether anything except this was said, although he thought that Mr. Brady might have said something. It is clear on the evidence that no ex&-ination of the various candidates' qualifications,was undertaken at this meeting. It is equally clear that in not recommending Mr. Nepham, Mr. Fletcher had not turned.his mind to tie formal qualifications for the job-, or to whether or no;-!lr. !!e;ham possessed the required qualifications. T.here is 20 evi?e.nce~ to suggest, and ,WE are not inclined to beliel'e, that a . . - 21 - different situation resulted with respect to any of the other candidates for the posting. This selection proce~dure leaves a great deal to be desired; We have already noted that the language of the Collective Agreement clearly contemplates a process in which candidates are takenin order of seniority, examined as to t!!eir qualifications, and appointed seriatim to the vacant Fositions until these are all filled. The procedure employed here satisfied only the first of these requirements, and that only in form. Similarly, we have already noted a violation of Article 16.5(a) in that candidates were not informed through the posting of the qualifications,required. We now find that the selectors themselves were left equally in the dark. It is beyond the capacity of. this Board to understand how a selection committee could assess whether a candidate was qualified for a position when it had before its neither a statement of the qualifications for the position nor a listing of the candidate's / own qualifications. Remedy' We have found that Xr.. Ilepham's application for promotion,to the position of 'B' Store Assistant Xanaqer ,(Liguor Store :%nnager 2) was improperly denied, in violation of the ~rovisL0r.s of the Collective lqreement. Pie hi3.e found that 2. I:z;h2;n - 22 - presented a cogent prima facie case that he was qualified -- for the promotion, given the rather unusual circumstance that no formal statement of qualifications for the post was available to the Board. We, have found that he was Fassed over in order of seniority in favour of Mr. WarWick. A number of remedial options are available to us. If we were satisfied that on the employer's own criteria the grievor possessed the requisite qualifications we might order his appointment to the position. Alternatively, we might take ,~ into account the fact that other candidates, more senior than the grievor, were passed over, and depending upon the circumstances of the particular case, we might conclude that their applications should be reconsidered. If we were unsure that the grievor was qualified but weresatisfied that the selection procedure was so flawed as to have rendered it unlikely that the question of his qualif.ications was properly addressed, we might require the employer to conduct the entire selection process over again. Depending on the nature and severity.of the flaws in the process, we might find it necessary to attach conditions to this reprocessing SO as to ensure that it was carried out properly. In the present case, where we do not, have before us a statement of positicn qualifications, \<e fiend it cifflcult ~~ Lo shape a wholly satisfactory r~:medy. I: we felt able to . .c - 23 - rely on our judgment of Mr. Mepham's qualifications,'we would have no hesitation in appointing him to the position even in the face of the ten more senior unsuccessful candidates, for they have apparently exercised their option not to grieve the outcome. !qe are satisfied that ?Ir. :leFham has established a prima facie case for his qualifications. This does not necessarily mean, however, that he was qualified, but only that the onus fell upon the employer to show that he was not. The employer has not discharged that onus successfully, but is has also not supplied us with any evidence-upon which to base a further assessment of Hr. Mepham's qualifications (other than the opinion evidence of the Store Manager, who said Mr.Mepham, in hi,s,view, was qualified). We are certain of one thing: that the selection procedure was flawed so that the question of qualifications was never properly addressed. It follows that we must take into account the ten senior candidates who have not grieved, for this is not a case of a griever saying "they looked at my qualifications and they made a mistake" ,~,under which circ'umstances it would have been open to any of the senior unsuccessful applicants to grieve; but instead a case where the grievor alleges a far more fundamental breach: 'I they failed to look at my qualifications".. And here any 'or all of the applicants, and tie union in its own right as ti@ll, - 24- albeit with some regret, to conclude that Xr. !lepham must be placed in the position. Instead we find Cne whole procedure to have been so flawed as to have been a nullity. It must be redone properly. It is our award that the posting be reprocessed as follows: 1. The employer is to produce the formal statement of qualifications for the position of 'B' Store Assistant Yanager (Liquor Store Manager 2) and circulate them forthwith to each of the original applicants for Job Posting $910. These applicants are to be informed that the original selec~tion procedure has been found by this Board to have been improper, . and they are to be invited to submit a statement of their qualifications for the positions (four in number) if they wish to reapply. The employer shall allow a reasonable time for reapplication. Only the original applicants shall be permitted to reapply. 2. Within 30 days from the release of this award, the employer shall establish a procedure'for selecting from among these candidates, specifying the personnel- to be tivolved, the documents to be placed before them, and the manner in which the selection shall operate, and it shall meet with representa- tives of the Union to discuss the adequacy of this procedure. If there is any dispute ab0,u.t the proce2::re to.be ft??loWed, 25 - days from the time of the meeting with the Union, the Union has not moved to have this Board determine such a c?is?ute, the employer shall put the procedure into effect. 3. The time limits.specified above may be varied on the mutual. agreement of the parties. 4. Employees who are promoted as a result of the procedure specified above shall have their appointments backdated to September lst, 1981. However, the the 'purposes of Article 16.10 of the Collective Agreement, the three month period specif,ied therefin shall begin on the date.on which the appointment is announced. 5. This Board shall remain seized to determine any dhs?utes arising out of the implementation of this award, including (but not restricted to) any disputes that may arise as to incidzntal compensation. Because~we are confident that the enoloyer will m&e every effort to implement the terms of #is award in good faith, we are not prepared to concedes t.\e Vnion's request that we provide for the attendance of a Union observer at the .~ selection meeting. This does not mean, however, that the - 26- parties may not mutually agree, if they SO desire, to have such an observer present. DATED at Toronto this 12th day of August, 1982. S. 8. Linden, Q.C. Vice Clxhnm .P. Craven Senber