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HomeMy WebLinkAbout1983-0088.Strazds.83-12-13ONvmO d I ; /’ CROWN EMPLOYEES y ;I GRIEVANCE SETTLEMENT BOARD IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: For the Employer: Hearings: OPSEU (Rita Strands) Grievor - and- The Crown in Right of Ontario (Ministry of Natural Resources) Employer E. B. Jolliffe, Q.C. Vice Chairman A. G. Stapleton Member I. J. Thomson Member R. Nabi Grievance Officer Ontario Public Service Employees'Union R. B. Itenson Senior Staff Relations Officer Staff Relations Division Civil Service Commission September 29 & 30, 1983 ' DECISION This matter originally came on for hearing before a panel of the Board chaired by Vice-Chairman R.L. Verity, Q.C., at Toronto on June 23, 1982. No evidence was presented at that hearing, but oral representations were considered, after which the Board made the following order: 1. 'Ihe request for adjournment is granted sine die, with the Part&es to arrange a convenient hearing date with the Registrar of the Grievance Settlement Beard. 2. 'Ihe venue of the hearing shall be changed from Toronto, titario to Dryden, htario. 3. 'Il-e Registrar of the Grievance Settlement Board shall set aside the consecutive days for the Hearing. 4. NC Order shall be made as to costs. Pursuant to the Order, a new panel was constituted and the matter again came on forhearing at Dryden on September 29 and 30, when the Board heard the evidence and submissions of the parties including the third party, Mr. Grant Craig. Early in November, 1982, Mr. Craig won a competition in respect of a position described as "Management Forester - Crown Unit Forester 2b. in the Red Lake District, Northwestern Region of the Ministry of Natural Resources. -3- On November 26, 1983, Miss Rita Strazdz (now Mrs. Rita Reynolds) who had ranked second in the competition, pre- sented a grievance alleging a violation of Article 4.3 in the applicable collective agreement, which is as follows: 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 griever requested of course that she be awarded "the position of Unit Forester Zb, Red Lake, Ministry competition #N.R. 253/82." When she applied for the position at Red Lake the grievor was not seeking a promotion. She was already a Unit Forester in the Crown Management Unit at Temagami, classified at the 2b level. Her reason for wishing to have what amounted to a lateral transfer was simply that she planned to marry Mr. R. Reynolds, who had been a Forester with the Ministry until June, 1981, but left to take a. similar position in the same district with Great Lakes Forest Products Limited. At the time that company was negotiating with the Ministry a Forest Management Agreement in respect of the Great Lakes Unit within i ;i - 4 - the Red Lake District. It is necessary to explain the somewhat unusual events which followed the result of the competition. On February 11, 1983, the griever tendered her resignation, to be effective at the end of April. This was accepted by District Manager R.B. McGee on February 16. Miss Strazds was married to Mr. Reynolds on May 7, 1983, and now resides at Red Lake. Thus, when the grievance came on for hearing at Dryden on September 29, the griever was no longer an employee and no longer a public servant. For that reason Mr. Itenson, on behalf of the employer, raised an objection that the Board lacks jurisdiciton to decide the matter at this date, pointing out that appointments to positions in the class- ified service are the prerogative of the Civil Service Commission under The Public Service Act. After hearing argument on the point, the Board with the consent of the parties reserved a ruling and proceeded to hear evidence on the merits. Reference will be made to the jurisdictional issue later in this decision. For the successful candidate, Mr. Craig, hi.s career history also followed a somewhat unusual course. Although he .- : i; -5- had been employed by the Ministry from time to time since May, 1978, on the unclassified staff or on special contracts, he was technically unemployed when interviewed. His last job at Atikokan (serving as an acting Unit Forester) had ended about October 22. According to him, the Ministry said he had put in so much time as a "casual" that he would have to take three months off pending a possible appointment to the classified staff, or he could have a contract for nine months at Atikokan. Al though Mr. Craig won the competition and accepted the offer of appointment "within an hour," he has never actually filled the position advertised, which was that of a "Forester 2b" in the Red Lake Crown iJnit. Instead he was assigned to work as a "Forester 2a" in the Great Lakes Forest Products Unit where his counterpart employed by the Company is Mr. R. Reynolds, husband of the griever. This curious result, as explained by Mr. Craig himself and District Manager E.W. Everley, arose in the following way. Mr. Craig had been rated at the Forester 1 level when working on the unclassified staff at Atikokan. District Forester Peter Gagnon told him that the normal progression was from - 6 - Forester 1 to Forester Za, not Forester 2b. The latter carries a higher salary than 2a. Messrs. Everley and Gagnon then pro- posed that he act as the Ministry's Forester in the Great Lakes unit, not the Crown unit, and as a Za, not a 2b. He agreed to this, believing that he needed,the experience, his previous service having been in Crown units., In the meantime the work in the Red Lake Crown unit was to conti.nue being done on an acting basis by Mr. H. Multimaki, a Forester 1 who had not applied for the advertised position. The net result of these arrangements is that the Forester 2b position in the Red Lake Crown unit, advertised by the Ministry in September, 1982, has not been Tilled. It appears that, strictly speaking, the position is still vacant. It has been explained'that the plan for the Crown Management unit had been devised earlier by Mr. Glen Swant. He was then assigned to the Great Lakes Unit and took part in negotiating for a forest Management Agreement with that'company. When negotiations were well advanced he received a promotfon to the post of Supervisor or District Forester at Nipigon. This is said to have created the vacancy at Red Lake. The facts are, however, that~ Mr. Mu ,1t imaki had been doing the work in the - 7 - Crown.Unit for eat leastayear, and since November, 1982, the vacancy in the Great Lakes Unit has been filled by Mr. Craig. There is no evidence that the vacancy in the Great Lakes Unit has ever been posted under Article 4.3 of the collective agree- ment. As to this rather peculiar arrangement --- under which the successful candidate fora2b. position in a specific Unit has been given a different job in a different Unit with a different classification --- the employer seems to rely on its exclusive powers to organize the work and~assign duties under section 18(l) of The Crown Employees Collecitve Bargaining Act. It is doubtful, however, that an expedient of the kind described above was what the parties contemplated when they agreed on December 17, 1982, to the provision embodied in Article 4.3 of the collective agreement, which is said to be effective from January 1, 1982 to December 31, 1983. We have to interpose at this point that the regularity of what happened to Mr. Craig after he won the competition is not an issue to be adjudicated upon by this Board at this time. The grievance before us is that of Miss Strazds (now'Mrs. Reynolds) and it relates exclusively to her claim that the result of the competition conducted by the Ministry was incorrect and a violation of Article 4.3 and that she ought to have received the appointment. What occurred after.Mr. Craiq's -8- success is not a matter on which we are required to pass judg- ment. If it has any bearing on the issues in this case, it must be taken into account, but only in relation to those issues. Mr. Craig was listed as single in his application for the post at Red Lake. However, he too seems to have plunged into matrimony because he testified that following the appoint- ment his wife left her job at Atikokan and moved to Red Lake, where she has found other work. Mr. Craig was duly notified of the hearing held at Dryden on September 29 and 30, 1983. He also received a sub- poena and was called by Mr. Nabi as the first witness. The Board advised Mr. Craig that, separate and apart from his capacity as a sworn witness, he had a right to speak on his own behalf and to question other witnesses. He offered no questions but made a statement and presented an argument after the other parties had been heard. It is common ground that the grievor in this case had considerably more experience and seniority than the successful candidate, Mr. Craig. The employer's position is of course that - 9 - the choice of Mr. Craig was made'on merit after a competition properly and impartially conducted. The Union's case is that the griever's qualifications were at least equal, if not superior to those of Mr. Craig, and that her seniority there- fore ought to have been a consideration. The Union also finds fault with the procedure by whtch the employer arrived at the result. Thus the two issues which arise in this case are whether the competition was properly conducted and whether in fact the grievor's'gualifications and ability were relatively equal or superior to those of Mr. Craig. .The course followed by the employer in conducting the competition may be summarized as follows: (1) At so&time prior to October, 1982, the Ministry circulated a "Notice of Competition," Exhibit 3. It was addressed to "Branch Directors and Field Offices." It identified the vacant position, briefly describing the Red Lake Community and the duties of the position, as well as specifying five essential qualifications. It said the "Area of Search" was - 10 - "Ministry Wide," adding the word "Open." In other words, qualified foresters outside the Ministry would be eligible. Applications to the Red Lake District Manager were invited, to be accompanied of course by supporting material. (2) The griever and her District Manager at. Temagami had earlier made it known that she hoped for a position in Red Lake. Indeed, Mr. Everley already knew the grievor and her fiance and was aware of their plans. (3) The District Manager received 19 applications before the closing date, October 15, and all were acknowledged. After screening, five candidates, including the grievor and Mr. Craig, were invited to interviews at the end of October. (4) The District Manager constituted a selection committee: himself, District Forester Gagnon and the office secretary and personnel clerk, Ms. Carole Foster. Mr. Everley has testified that all three had previous experience in holding competitions. (5) Messrs. Everley and Gagnon prepared a written - 11 - list of 10 questions, Exhibit 15, to be answered orally .by the candidates. They also devised an 11th test, to be answered in writing. Each question was weighted according to the importance attached thereto, four receiving a maximum of 5 points each, six receiving 10, and only one receiving 15 points, for a total of 95 points. These all appear at the top of the score card, Exhibit 13. (6) Messrs. Everley and Gagnon also prepared a check- list (Exhibit 16) of answers they thought would be correct or appropriate in responding orally to the first 10 questions. (7) Before the interviews began, Mr. Everley spoke privately to the grievor and separately to Mr. Craig. He seems to have recognized their nervousness and sought to put them at ease. Among other things he asked the grievor about her marriage plans. (8) At the interviews, the three members of the committee took turns asking the predetermined questions. Each member independently awarded points in respect of each question. Thereafter their scoring was collated on the score card by Mr. - 12 - EX?rley . He alone did the scoring for the paper test set by the 11th question. The scores were totalled for each candidate. For the 10 oral questions there was a maximum possible of 90 x 3 = 270. A maximum of 5 points could then be allowed for the paper work by Mr. Everley alone, increasing the total possible points to 275. It will be noted that the method use,d gave the opinion of Ms. Foster --- or the opinion of District Forester Gagnon --- value equal to the opinion of District Manager Ever except that he alone did the scoring of the paper work, which was worth only five points. ley (9) Following were the significant results: of a possible 275 points Mr. Craig scored 183,,the griever scored 163.5 and Mr. Park 160.5. The other two candidates were far behind. (10) In respect of the 10 oral questions certain variations were probably inevitable. On such occasion? there are often honest differences of opinion, like those below. (11) To the griever, District Manager Everley awarded a total of 61 points out of a possible 90, rather more - 13 - than his colleagues gave her. District Forester Gagnon awarded only 49, Ms. Foster 51. ( 12) The Everley score for Mr. Craig was 62. Gagnon score was 60, and Foster scored 57. These were re close. The lative lY (13) The score for Park was: Everley 53, Gagnon 54 and Foster 49.5. (14) Scoring the paper work alone, Mr. Everley gave the griever 2.5 points; he gave Mr. Craig and Mr. Park 4 points each. (15) The "Notice of Competition" had specified among essential qualifications: "good knowledge of forest management agreement principles and development procedures; sound knowledge. of current forest management policies and techniques, Crown Timber Act and Regulations," and also "demonstrated ability to prepare and analyse forest management and operating plans." Most of the 10 oral questions were well-designed to ,test the candidates' kno\%?ledge and capacity in such matters. This Board - 14 - however, considers that the first question was so inappropriately worded as to have dubious value, and the seventh question was probably worthless. (16) The first question was simply stated: "Give the procedures involved in laying charges under the Crown Timber Act." The defect in the question is that it calls only for' the procedure involved in a prosecution under that Act. Actually the committee had a number of other procedures in mind as well. This appears clearly from their model answers set out in Exhibit 16, which include "civil court action to recover the value of the timber" ,as well as seizure of the timber and prosecutions for theft under the Criminal Code. Fortunately for them, the three leading candidates seem to have divined what the committee had in mind: of 30 possible points, the grievor scored 25, Mr. Park 23 and Mr. Craig 21. (17) The seventh question had very different results. It was: "What is the Performance Management Cycle? What are the advantages/disadvantages?" Clearly, three out of the five candidates knew nothing of the term, perhaps because they had - 15 - never heard of it. Of 30 possible points, the three, including Mr. Park, scored exactly zero. The grievor received 3 points from Mr. Gagnon and 3 from Ms. Foster, but 0 from Mr. Everley. Mr. Craig won 24 points out of a possible 30, which gave him an 18-point advantage over the griever and an even greater advantage over Mr. Park, who had done well on all other questions. Indeed, if Mr. Park had equalled Mr. Craig's 24 points his final total (at 184.5) would have exceeded Mr. Craig's final total of 183. Mr. Craig has testified he was able to answer the seventh question because he happened to have taken a course in which the "Performance Management Cycle" was-a subject. In the ~Board's view the seventh question was unfair in that the term is not generally known or understood. It is not surprising that only one of five candidates (three of whom were undoubedly well qualified) could give adequate answers. Moreover, the competition was suposed to be "open" and it was not reasonable to expect that a forester from the private sector could be familiar with such an esoteric term. (18) Notwithstanding two defective questions, the Board considers that on.the whole the questions were, as previously mentioned, well'designed to test the knowledge and - 16 - ability of the candidates, and that the method of scoring was not unfair. (19) Mr. Everley has candidly testified that the committee was much influenced by the relative "communication skills" of the candidates.~ In their opinion Mr. Craig's ability to articulate and explain his answers was superior to that of the griever. Following the competition he telephoned the District Forester at Temagami and obtained confirmation of his own view that notwithstanding other excellent qualifications the grievor lacked some of the qualities required in dealing effectively with licensees who cut wood on Crown management units, 120) Apart from post-competitiontelephone calls to the District Foresters at Temagami and Atikokan, Mr. Everley had no information about the candidates other than their appli- cations, the material filed therewith and their performance at interviews with the committee. There is no evidence that his colleagues had any more information than he did. Clearly., the committee refrained from asking for any personnel file or any letter of reference. Thus the committee knew nothing of the candidates' record of performance other than what appeared in - 17 - their applications. If there had been satisfactory or unsatis- factory performance appraisals, the,committee would know nothing of them. Nevertheless, Mr. Everley (the only member of the committee to testify) considered that both the grievor and Mr. Craig were experienced and qualified foresters. This is con- firmed by the scores he himself awarded them: 61 points to the grievor and 62 to Mr. Craig. (21) In cross-examination Ms. Everley said he con- sidered himself to be familiar with policy in respect of compe- titions but he had not consulted any one in the Ministry about it and he did not know the decisionsof this Board. (22) With reference to Article 4.3 in the collective agreement, Mr. Everley said seniority was not a consideration because his committee had found that Mr. Craig's qualifications and ability were superior to those of the griever: they were not thought to be "relatively equal." After reviewing and considering the course taken by Mr. Everley's committee, as described above, this Board cannot find that the competition was unfairly or improperly conducted I - 18 - or that the procedure was contrary to the requiremeqts of Article 4.3. Of course it is possible to find fault with the conduct of almost any competition. Like most, there were defects in thiscompetition but we do not think they were sufficiently' serious to justify rejecting it. In particular, we think it regrettable that the committee made no effort to examine performance appraisals. The practice of ignoring such appraisals has been expressly deplored by this Board --- and also by a Manager of Staffing (in another Ministry) who testified in Ellsworth 261/80. It is regrettable that the selection committee in this case as in many others thought itself fully competent to reach a conclusion almost exclusively on the basis of interviews with the candidates. Nevertheless, we think the committee made a sincere and rational effort to assess relative merits, and we do not think the procedure used was so defective as to negative the whole process. h'e turn now to our own assessment of two candidates, on the evidence placed before us at a hearing which continued not for one or two hours but for several hours in which they both spoke and ans~wered questions very fully. We also had the advantage of examining many exhibits, including detailed position Z - 19 - specifications for the grievor's former position in the Temagami Crown unit and the advertised position in the Red Lake Crown unit, as well as the Class Standards for Forester 1, 2a and 2b. Mr. Craig had his early education in Kenora, leaving in 1973 after Grade 13. Five years later he graduated as a B.Sc. (Forestry) from Lakehead University at Thunder Bay. He had a special interest in forest soils. In the summers of 1973, 1974 and 1975 he worked on pollution' problems with the Ministry of the Environment at Kenora and Thunder Bay. In the. summer of 1972, however, he had his first experience with the Ministry of Natural Resources assisting with wild life surveys in the Kenora area. He again worked for the Ministry in the summers of 1976 and 1971. acting as a crew boss on various projects in the woods: When Mr. Craig graduated in 1978 there was work for , him as a crew leader in the Red Lake District, ending in October. Shortly thereafter he was used by the Ministry on contract for about 17 months in three districts of the Central Region. In 1980 he became a member of the Ontario Professional Foresters Association. - 20 - From April, 1980, to about October 22, 1982, Mr. Craig had another contract with the Ministry, this time at Atikokan. Although rated as a Forester 1 in training, he acted as Unit Forester in the Flanders CrownUnit, due to the illness of another forester, and he was paid at the top of the Forester 1 range. During the whole of the period from 1976 to November, 1982, he was employed by the Ministry most of the time but never received an appointment to the permanent staff --- i.e. the classified service. Thus it was natural that he should seek such an appointment when the opening at Red Lake was advertised. Like Mr. Craig, the griever was born in 1953, left a Toronto school after Grade 13 and then entered the four-year Forestry course at the University of Toronto, graduating with a B.SC. degree in 1976. She joined the O.P.F.A. in 1978. Thus her professional experience is at least two years more than that of Mr. Craig. She has taken courses in horticulture and arbori- culture offered by the University of Guelph. She too worked in the forests of Northern Ontario as a Resource Technician in the summer of 1975. She had also served as a forestry technician with the Ministry of the Environment in the summers of 1973 and 1974. - 21 - Since 1977 she has also taken courses given by the Ministry at Thessalon, North Bay, Toronto, Sault Ste. Marie, Thunder Bay and Kapuskasing. One of these was a Management Planning course. Immediately after graduation the grievor‘became a Forester 1 in training, and two years later, in April, 1978, was promoted to Management Forester 2b and placed in charge of the Temagami Crown unit. Thus by October, 1982, she had four and one-half years of experience in that capacity. In her resume/, the griever pointed out that she had been responsible for preparation of a ZO-year management plan and an operating plan, as well as preliminary negotiations with Consolidated-Bathurst Inc. for a Forest Management Agreement. She said the unit included a wide range of enterprises, such as sawmills, pulp mills and veneer mills as well as cutting oper- ations by licensees. On comparing the position specifications for the Unit Forester at Temagami and the Unit Forester at Red Lake --- both in Crown units --- it becomes clear that the two are very similar. - 22 - Whatever the reasons may be, it is clear that the griever had more professional experience than Mr. Craig. She had been a Forester on the classified staff for more than six years, most of that period as a Forester 2b in a Crown Unit, responsible to the District Forest Management Supervisor. Mr. Craig had acted for a year or more in a similar capacity ---- with much lower rank --- at Atikokan, but in four years he had never won appointment to the classified staff. On the other hand, Mr. Craig appears to have had extensive and very practical experience in the woods as a resource technician and crew'chief. Indeed he was working for the Ministry as long ago as the summer of 1972. In her testimony the griever said she did not think the committee attached sufficient importance to her record of experience. She liked her work at Temagami but felt she "had no choice" about leaving. She resigned in February because she could not "abandon" the position without jeopardizing her grievance and her whole career. The District Manager at Temagami, Mr. McGee, accepted the resignation on February 16, adding a reference to her 20-year plan, Exhibit 11: ? - 23 - I appreciate your contribution over the past 5 years (April 1st) as a,unit forester, also your help with the district land use plan, these last few months. The management plan you have prepared will serve to guide and improve Forest Management practices on the Temagami Unit for the next 20 years. The gr 12, attempting to ever again wrote Mr. McGee 'on March 3, Exhibit clarify her resignation: Further to my letter of February llth, 1983, please be advised that I muld not be resigning an April 29th, 1983, if I had been awardedthe Unit Forester's position in Red Lake. My reasm for resigning, as you know, is that I am getting married in May and will be moving from Temagami. The griever also explained to the Board that she had known her husband since university days, their engagement had been a long one and they did not think marriage should be post- poned any further. Notwithstanding her experience, no other job has been offered by the Ministry. She said she would have been "uncomfortable" if assigned to the Great Lakes unit (as Mr. Craig was) but would have accepted it. ,id not detect Cross-examined, the griever said she d any sign of bias or discrimination in the conduct competition. of the - 24 ~- On his part Mr. Everley testified that "when Craig was appointed we intended to put him in the Crown Unit, but then we decided that since he had more experience we'd put him in the Great Lakes Unit and keep Multimaki In the Crown Unit." Theoretically in 1981 Mr.'Swant had been in charge of the Crown Unit and Mr: Multimaki was supposed to be assigned to Great Lakes, but Mr. Everley made .an exchange of their functions because Mr. Swant was better qualified to deal with the Company. Thus --- in theory at least --- it was the promotion of Mr. Swant to another district which created the vacancy in the Red Lake Crown Unit. Mr. Everley' also said that if the griever had won the competition he could not have shifted her to the Great Lakes Unit because of her husband's work there with the Company. Mr. Everley agreed that Mr. Craig, still classified 2a. is being paid less than the griever would have received as a 2b. He also agreed with her testimony that he had said success in the competition would depend on the scores given for the oral and written tests. The Board is satisfied that both Mr,. Craig and the ,grievor were well qualified to fill the position which had been - 25 - advertised. Undoubtedly the result was affected by certain diferences in personality. Mr. Craig is a very confident and able young man who candidly spoke of his ambition to rise in the public service --- or in the private sector. He demonstrated superior communication skills when examined by Mr. Nabi and Mr. Itenson, and again when he was invited to state his own. case after the evidence and arguments of the other parties had been concluded. It is significant that the resume' he had submitted with his application, Exhibit 14, is a model of its kind, exceptionally well-organized and well-written, with considerable detail. He also 'gave 12 Forestry officials as references --- not one of whom was consulted by the committee. The griever too has a pleasing personality but appears to be somewhat reticent and reserved. If she seemed shy or diffident in testifying it was probably due to,the same nervousness which troubled her when she faced the committee,in October, 1982. On balance we cannot disagree with the committee's conclusion that the "communication skills" of Mr. Craig were superior to hers. In addition, even if the seventh question is excluded from consideration, the ~scores awarded on Exhibit 13, give Mr. Craig 159 points and the griever 157.5. It was dose. but there was asmall margin in his -favour. . . . - 26 - It can be argued of course that such a small difference in scoring is evidence that the two candidates were "relatively equal" in merit. The argument is persuasive, but we think the committee members were entitled to take into account their impression of relative communication skills -- as they undoubtedly did. In that category it is clear that Nr, Craig had a definite advantage. In any~event, Article 4.3 does not make seniority the "governing factor." It provides that where the meritsare relatively equal, s~eniority "shall be a consideration." The grievance referred to arbitration alleged a violation of Article 4.3. We have concluded that the competktion in respect of the advertised position was not improperly condilcted and that the result was correct. For reasons heretofore stated the grievance cannot be sustained and must be dismissed. In view of the result, there is no need to express an opinion on the employer's objection to jurisdiction, raised at the outset of the hearing in Dryden. Although the grievance itself has been disposed of, we deem it proper to add a postcript, with a recommendation. - 27 - The Board,is troubled by the fact that the vacant 2b. position in the Red Lake Crown Unit was not filled as a result of the competition. Instead, the candidate who won the competition was shifted (with his consent) to a 2a. position in a different Unit. In the mea.ntime, according to Mr. Everley, a Forester 1 has been acting as the Unit Forester in the Crown Unit. Mr. Everley asserts that this arrangement was not contemplated at the time of the competition. It is certainly inconsistent with the very specific statements made in Exhibit 3, the "Notice of Compe- tition." We have serious doubts about the propriety of so lightly casting aside what had been advertised throughout the Ministry. Further, in ,such circumstances, it may~be questioned whether it was proper to ignore the candidate who placed second in an attempt'to win the competition for the position in the Crown Unit. If it was in fact a'2b. position --- as advertised --- it seems strange that the duties of the position should continue to be carried for a year or more by a Forester 1 (who had not even applied for the advertised position) when --- as was apparent in November, 1982 --- a qualified Forester 2b. was available. It has not been explained why or how the requirement for a Forester 2b., advertised in September, suddenly ceased to - 28 - exist in November. The related question is whether the candidate became entitled to the position when Mr. Craig (with his consent) was transferred elsewhere. The Board does not, in our opinion, have jurisdiction to rectify what appears to be an anomalous and perhaps unjust situation. It is therefore strongly recommended that the matter be referred to the Civil Service Commission for further consideration. ,,.;/i;, .A’ _,+.I ~_ r i Dated at Toronto . this 13th day of December, ; /' ,,;$ 1983 ,,I -~;'~&/~&J d. "'L ,; ;: \ /-t/-;i / E.B. Jolliffe, Q.C. Vice-Chairman "I dissent" (see attached) I.J. Thomson Member EBJ:sol A.G. Stapleton Member With all due respect to my colleagues on the Board, I cannot understand how they reached the conclusion they did and denied the grievanc'e. As~is pointed out in the award, the Grievor had five years' seniority with the Ministry and was classified as a Forester 2B. The successful candidate, Mr. Craig, was not even an employee of the Ministry and had never been appointed,to the Classified Staff of the Public Service. Article 4.3 of the Collecti ve Agreement states that "primary considerati on be given to qualifications and ability to perform t he required duties". Surely from the evidence, no one can deny that the Grievor has the qualifications and ability to perform the duties of the pos i tion she applied for. The majority concludes that Mr. Craig was superior to the Grievor because he had better communicative skills and could express himself better. Certainly, he is a forceful, articulate and ambitious young man., In my opinion, this is.not enough to override the qualifications and ability of the Grievor, nor the five years' service with the Ministry while he had no seniority. The results of the oral test left Mr. Craig with an advantage of 1 l/2 points if question #7 is eliminated which the award points out was meaningless and of all the candidates only Mr. Craig knew what it meant. Even when Mr. Everly gave Mr. Craig an extra 1 l/2 points for written question #ll', in my opinion this does not make Mr. Craig superior. I agree with the remarks and conclusion reached in the majority decision that, in effect, the position posted has not been filled by this competition and there is still a vacancy. I would have.awarded the Gri~evor the position she applied for in her Grievance. November 8, 1983 I. 3. Thomson Member