HomeMy WebLinkAbout1984-1577.Renton and Ross.86-03-10.
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:
"- OPSEU (D. Renton & J. Ross)
- and -
The Crown in Right of Ontario
(Ministry of Government Services)
For the Third Party:
Hearinqs:
R. 3. Roberts - Chairman
S. Dunkley - Member
B. Lobraico - Member
M. I. Rotman
Counsel
Rotman, Zagdanski Barristers & Solicitors
L. McIntosh
Law Officer ~__. -. .-
Grievors
Employer
Crown Law Otrlce, clvll
Ministry of the Attorney General
I. R. McTavish
Counsel Trussler & McTavish
Barristers & Solicitors
January 9 and 10, 1986
North Bay, Ontario
L i
2.
DECISION
This is a job posting Case in which the suCcesSfu1
candidate was an applicant from outside the Civil Service.
On behalf of the two grievers, who both had considerable
seniority within the Civil Service, the Union raised a number
of issues. The first of these was whether the Ministry violated
the Collective Agreement when it decided to open the competition
to outside applicants. The second was whether the selection
process was so flawed as to require at least a new competition.
The third, and final- issue was whether one or other of the
grievors should have been the successful candidate because
.he xas relatively equal to the incumbent.. ?or reasons which
follow, the grievances are dismissed.
Before proceeding to address the facts, it should
be noted in this award that the successful candidate, Mr.
/ F. Cunningham, was duly notified of his rights in the present
proceeding and elected to be regresented by his own counsel,
Mr. McTavish. The hearing was held in North 3a:r, inter alia,
to minimize the legal costs which otherwise might have been
incurred by Mr. Cunningham.
.3.
Required by the Ministry of Government Services,
North Bay District, Property Management Division
to arrange for and inspect the installation, repair
and renovation of electrical systems and equipment
in government buildings throughout the district.
You will: inspect systems and equipment, recommending
appropriate action to correct any problems; prepare
preliminary sketches, estimates, scopes of work
to be used for tendering: liaise with contractor,
ensuring adherence to contract documents, bylaws
and local safety codes; resolve disputes, claims:
check validity of contractors' claims and billings
for progress payments: assist in preparation of
budgets: assess useful life of electrical equipment,
making appropriate recommendations.
QUALIFI-CATIONS:
Ontario electrician's certificate of qualification
or a certificate in Electrical Technology in Design
from a C.A.A.T.: good knowledge of electrical systems,
pertaining to E.V.A.C., firealarms, monitoring systems
and generators etc., relevant codes and regulations~.
Proven ability to inspect work carried out by contracto:
and prepare reports: good communications skills
both verbal and written: valid class "G" Drivers'
License.
I
This notice indicated that it was open, inter alia, to candidates
within commuting distance of North Bay regardless of whe.ther
they currently were Ontario Civil Servants.
were on
4.
,ly four Electricians in the Civi 1 Service who would
be qualified to apply. Moreover, the chances of all four
applying, he testified, were remote. He indicated that he
based this judgment upon the fact that in a previous competition
for an Electricial Supervisory., which was a management position
equal in salary to that of Electrical Inspector, there was
~only.one applicant. In light of these considerations, the
decisions was made to recommend that an open competition be
held for the Inspector position.
_'
As it was, at least ten candidates applied for the
job. Six of these, including the incumbent and the two grievors,
were interviewed. Both Mr. Harney and another member of the
three-person interview panel, Mr. J. Lefevre, the Electrical
Supervisor, North Bay District, testified that each candidate
was subjected to the same procedure. Generaily, when a candidate
showed up for his interview, he was provided with a copy of
the job specification and given approximately one half hour
to review it. There followed an oral interview in which the
candidate was asked a number of pre-determined questions.
This was followed by a short written exercise in which the
candidate was required to respond in writir.g to six separate
questions. These questions had to be ans~dered in the s?ac4
0 f = :;. i rty mni.z2:tes. At . the en? of z.i.2: c.-?.E, :!?e C3I?ClL2ZiS'
5.
It was not until each candidate entered the interview
room.that he was advised of the form his interview would take.
Until then, he had no knowledge that as part of the procedure,
he would be required to'take a written test. Although the
questions which were asked during the oral segment of the
interview were given diffe,rent point values, the candidate
was not advised of the number of points allocated to each
ouestion. Similarl,y,.the question sheet for the written porticn
neither indicated the total number of points assigned to the
written test nor the-allocation of these points among the
six questions.
Mr. Harney testified that the oral questions were
related to the position specification and the functions that
the candidate would have to perform in the job. According
to the evidence, these questions were divided into four categories
which were weighted as follows: experience/kno;ledqe, 31%;
contract supervision, 17%; communication skills, 15%: and,
personal suitability, 10%. The written test was designed
3 to examine aspects of the candidate's technical knowledge
which were not covered in the oral PO&ion of' the interview.
The answers of the candidate were evaluated from the
standpoint of technical completeness and ability to coanunicate
i .q :*' r i f i .-, q . The written test i;as qi;.e: i ;;eiqk.:t cf 275.
6.
As the candidate answered a question, each 3oard member took
notes and scored the candidate's response.. While the candidate
completed the written exercise in a separate room, the members
of the Committee compared their scores on each question In
an attempt to reach consensus. Thereafter, the written test
was scored by Mr. Lefevre, who was the most technically competent
member of the Board. The written answers of the candidate
and the scores that Mr. Lefevre assigned to them were then
reviewed by the o$her members of the Board, and discussed.
After all interviews were 'completed, the total scores
of the candidates were compared. Mr . Cunningham was ranked
frrst, with a score of 74%. Next came Mr. 3. Levesgce, who was
from the outside. He had a score of 61%. Mr. Ross, one of
the grievors, ranked third with a score of 56%. Mr. Renton,
the other grievor, came fourth, with 53%. The evidence indicated
that Mr. Cunningham and the two qrievors all were considered
to have the qualifications and ability to perform the job
in qu-estion; however, because the qualifications and ability'
of the qrievors were not considered to be "relatively equal"
to those of Mr. Cunningham, the latter was selected as the
successful candidate. This result was officially announced
I.7 late November, 1981. On December 12, ?:r. Ross qrieved.
T:+o clays later, :.!r. xenton follower sul:.
7.
on behalf of the grievors: first, whether the Ministry improperly
defined the area of search by deciding ab initio.to hold an -
In open " competition: secondly, whether the selection' procedure
was so defective as to require it to be invalidated: and,
thirdly, whether, on the evidence, one or other of the grievors
was"relativeiy equal" to Xr. Cunningham, so that the job :ightf,ully
should have gone to him. These issues will be addressed seriatim,
hereinbelow.
I. THE AREA OF SEARCE
The provisions of the Collective Agreement governing
the posting and filling of vacancies are found in Article
4. This Article comprises four sections which, inter alia,
define'how long a vacancy must be posted: describe what should
be in the notice: identify the criteria which should be applied
in filling the vacancy; and provide for paid time off for
applicants who are invited to attend an interview. None of
the provisions of Article 4 establishes, expressly or impliedly
any criteria for management to follow in defining the area
of search. Moreover; we were not referred to any o:her provisions
of the Collective Agreement which so ~addressed this function.
In these circumstances, it must be concluded that defining
'y.'.r are3 0: . searcn re.ma:zez a matter 05 >aF:E-srizi zis--s-' h ___- 27.
-r.eer .tkle ??ar.ageme.rlt Rich:S cla~lse. See ~Crot;r. 31c~lo.:ees ' e--l--
Ccllectivr Baroaininq Act, RSO 1590, c. ?'?i, s. ?j!l!. -----.A.-- ._~ ~-_-.~-__-
8.
There appeared to be little dispute between the
parties upon the foregoing aspect of the issue: however, it
was submitted'by counsel for the Union that in light cf Re The
Queen in Richt of Ontario and Ontario Public Service Emolovees'
Union (19841, 45 0.0. (2d) 361 (Div. Ct.), Management was
obligated to exercise its management rights according to the
policy published in its Manual of Administration, and that
it had not done so in the present case. In support of this
submission, counsel referred to several pages from this Manual
relating to the stafZing policy of Management in defining
the area of search.
In Re The Queen and OPSEU, supra, the Divisional.
Court dismissed an application for review of an award to the
Grievance Settlement Board which dealt with the way in which
the Ministry of Transportation and Communications paid mileage
allowance to construction employees who moved from job site
to job site. In that case, the Ministry unilaterally changed
the "designated headquarters" of the grievor from a point
near his home to an artificially-designate? point relatively
close to his then current job site. This had the impact of reducing
from $5,700.00 to about $1,600.00,the yearly mileage expenses
that the griever was entitled to claim. The only provision
0: t:?e Collec~ci~~e. Acreerrenr .Xlkici? relate: to the :,atter, .A.rricle
22.1, merely set forth a schedule of milezqe rates. It did I
n c t f ,2 t t e r the discretion of ?lanagenent -::.Zer the :.:anagement
DC ,-i-c C‘!:3US~ to select 3”riesi ~r:a:c+ !3.22r:.q~i-,rtnrs” ;?s i,t s;i’r.
9.
There was in evidence, however, a provision of the
Travelling and Living Expense Accounts Manual of the Ministry
which specified, inter alia, thatthe.location of an employee's
designated,headquarters ~was to be determined in a manner
which was "equitable to both the ,employee and the Ministry."
The Board concluded that in light of the Ministry's published
policy "it would extend the rationale of...[an] earlier decision
'to state that any redesignation of 'des~ignated headquarters'
must be equitable to both the employee and theMinistry within
1~.
the meaning of . ..the Ministry manual'." Ld, at p. 364.
The Divisional Court, ner Osler J. upheld.the award stating, "Fe -
find nothing patently~unreasonable in the interpretation given by the
board to the agreement and its application". - 1d. at p. 366.
Thereafter, Osler J. made the following obiter
observation regarding a management rights argument which
had been put forward by counsel for the Ministry:
Before leaving the matter, we should comment
briefly on a submission made by the appl'icant to the effect that'Re Metrooolitan Toronto Board of
Com'rs of Police and Metroooiitan Toronto Police
Ass'n et al. (1981), 33 O.R. (id) 476, 124 D.L.R.
(3d) 684, 81 C.L.L.C. para. 14,116, was authority
for the submission that it was the right of M.T.C.
to fix and designate headquarters-regardless of
the equities involved. That case [at p. 479 O.R.,
'P* 687 D.L.R.] stated merely that:
iiaving regare to tlhe naf:~r? =t t:he zcreemen:,
and to its provisions, xc 5.22 no :.ecessit:/
in this case to imply a :ez t5a.t the manac2-
melt rlgnts cla-se will 3e applied fairly and
without discrimination..
10.
manual we have cited and in so doing indicated
that these rights would be exercised in a certain
way, equitable to both sides.
In the light of that language there is again
no necessity to imply a term of fairness and non-
discrimination; that obligation has been assumed
by management in the very instrument it used in
carrying out its duty tc manage. Id. at p. 366. -
It was not indicated whether this observation was based upon
promissory estoppel or some wider notion under which unilateral
management documents might be construed as conferring rights
upon members of the bargaining unit beyond those to be found
in the Collective Agreement.
Speaking for ourselves, we should be surprised to
find that the Divisional Court based its observation upon the
'doctrine of .promissory estoppel--or at least a generalized appli-
cation thereof. One of the most fundamental prereqeisites'to
application of this doctrine is that the representation of the
Promiser must have been intended to create legal' relations.
See the reasons of Lord Denning in Central London Prooertv Trust -
&i& v. Hiqh Tree Rouse Ltd. 119471 K.B. 130, at 134, 136.
See also, Owen Sound Public Library Board 5' . Xial Develooments
m (1979), 26 O.R. (2dl 459, at 467 (Ont. C.A.). This is
a matter for objective inq-iry. The subjec:L,Je intention cf
?Lh?e >rcm.isor is irrelevant. :.1ore co t:57r ;ci:.: er3 T5.2 c~~xts:icr.~
whether the prot7isor intended cr had reason -5 :kncw that his
ro~resa~taticn was going to Se act5 d ~:?on 5:. rh.2 rxmises, S.ZE,
,,>
11.
served some other legitimate purpose such as providing a mere
indulqency, see John Sarrows Ltd. v. Subsurface Survevs Ltd.
(1968) 68 D.L.R. (2d) 354 (S.C.,C.), and Tool Xetal Plfa. Co.
V. Tmasten Electric Co-. Ltd. [1955] 2 All E.R. 657, at p.
660.
It would seem to us that, generally, the mere oublicatioc
_ 0: an amln~stratlon m anual would fall far 51:,0X of establishing
an intention to create legal relations with the Union. Prima ;-
facie, the main purpo_se of the manual would be to guide management,
and not to induce'the Union to act upon the faith of its provisions.
Unless there were convincing evidence to the contrary before
theDivisional Court we do not see how this fundamental arerequisite
to the doctrine of promissory estoppel could have been satisfied.
In the present case, the only evidence that the U3ion
submitted'on this aspect of the matter consisted.of several
pages from.the Manual of Administration. There was no evidence
to show that on the faith of the policy expressed in these paqes
the Union, to the knowledge of management, had been induced
to act in' any respect. Accordingly; it would have to be ccn-
eluded that the mere act of publishinq the manual, and e_~co
ma?clnq it available to~the Un~cn, faiied zc demonstrate that
-- .-: e ;.t i .-; i 5 -- = I' i r, -- 3 ,?, d * ;- : b, ,z 2 0 1 i ,z i = 5 i..-,-3ci2; -e;-,rr-in y-" a* _A__- -II-..
Iec.3ll.; h-Jindi?q usc,n itself.
As to the possibility that the Divisional Court was
expressing s*me wider notion in its dictum in Re The Queen
and OPSEU, sucra, we find that in the absence of further
amplification from the court, it would be inappropriate to
seek to apply this notion in deciding issues before the
Grievance Settlement Board. Over the years, the various
Ministries have seen fit to publish a number of manuals
for the guidance of their administrators, and they have made 1..
these manuals available to the Union. It would seem that the
ready availability of these publications has generally been
beneficial to all concerned, both in terms of resolving
misunderstandings and providing assistance in defining
issues for future negotiation. The Board should be vigilant
to avoid importing into its decisions undeveloped dictum with
so broad a sweep as potentially to chill the interest of
management in making access ible to emp loyees such valuable
information.
Moreover, in defining the area of 'search in the
present case, it does not appear that management departed
from the staffing policy of the Manual of Administration.
This policy states, in pertinent part:
13.
Considerations in Determinina Area:
The following must be considered in determining
the area of search:
- all relevant Acts, policies and procedures
relating to staffing actions:
- the size of the candidate population required
~to identify not less than three acceptable
candidates:
- the need to provide career opportunities for
civil servants;
- the need, when recruiting outside the civil
service, to ensure that civil servants are
given concurrent opportuni,ties to apply and
to be considered:
- the urgency and'cost in satisfying the staffing needs of the Ministry's- program.
NOTE: In cases where there is a known scarcity
'of qualified candidates within the Ontario Public
Service, members,of the public may be invited
to compete for vacancies at any level.
The policy laid down a number of criteria which were
required to be considered in defining area of search.
We find that these considerations were taken.
into account when Mr. Earney decided to open the competition
in question to ncn:civil servants. Ee testified that, to his
kzowledqe, the candidate pop,ulation amcnq civil servants in
the North 3ay area wocld, in al? likelihood, be insufficient
14.
when only one candidate applied for the position. He further
testified that he considered running a closed competition
province-wide but rejected that because of the transportation
costs that would be involved and known difficulties in inducing
those in Southern Ontario to apply for positions in the north.
These were precisely the kinds of considerations that the guide-
lines appear to have contemplated. It certainly was reasonable
for Nr. Harney to conclude, in the words of the policy, that
there was "a known scarcity of qualified candidates within the
ified inviting members of the Ontario Public Service" which just 1..
public to compete.
Finally, there did not appear to be any evidence
indicating that the need to provide career opportunities for
civil servants, etc., was ignored. Counsel for the Union
suggested that in order to give weight to this consideration,
Mr. Harney might have settled upon a two-stage process, i.e.,
first holding a closed competition and, upon receipt of an
insufficient number of applications from civil servants, going
to a second stage involving an open competition. Perhaps this
would not have been anlinappropriate response where management
harboured only suspicions regarding the size of the in-house
candidate population, but here, Xr..Harney had nore reliable
information u?on which to make his determination. Accordingly,
et/en if the decision of Xr. harney in determin:ng the area
of search had been rex;ie%able for conformi:;. to the req-iremezts
of the staffing policy, we woulci !:a.;e fount -that there '.,;a5 no
dtgarture therefrom in t!le CIrc'Jms'""‘~‘ c: the prrsf2r.t case. &-..iCb
15.
II. THE SELECTION PROCEDURE:
Article 4.3 of the Collective Agreement reads as
follows:
ARTICLE 4 - POSTING AND PILLING OF VACANCXS
OR NEW POSITIONS
. . . . .
4.3 In filling a vacancy, the Employer shall
give primary consideration to cualifications
and ability to perform the req.iired duties.
Where qualifications and ability are relatively
equal; length of continuous service shall be
a consideration.
. This Soard has consistently held that in meeting its obligations
under this provision, the Ministry "must employ a process of
decision making-designed.to consider the relevant qualifications
and ability of the candidate in a competition which will ensure
that sufficient relevant information is adduced....thoroughly
and properly [to] compare the qualifications and the abilities
of the competing applicants." Re Quinn and ??inistry of Trans-
nortation and communications, G.S.B. NO. 9/78.
Counsel for the Union submitted that in the present
16.
As to the interview itself, there was no challenge
to the relevance of the questions to the requirements of the
job. Xather, it was submitted that the panel Gas not sufficiently
apprised of the backgroundsof the candidates because of undue
reliance upon applications and resumes. In particular, the
panel was critized for not seeking to review the personnel
files of the gr'ievoaor, at least, to contact their supervisors
in order to obtain further information which might relate to
their qualifications and abilities to do the job.
1~~
Indeed, in %e Quinn, suora, and Re Eoffman and Ministrv
of Transoortation and Communications (19811, G.S.B. 422/79
(aartonl, the decision of this board to order a new competition
turned upon, 'inter alia, the presence of such defects. .In
the latter case, Professor Barton summarized his reasons as
follows:
.
In Ouinn it was held that the Selection Committee
was not sufficiently well informed and this Board
directed the Ministry to reopen the competition and
try again. In particular, the Board there was con-
cerned that there was no evidence given of any regular
system of work performance appraisal and that no
supervisors were asked about the candidates. 3he
Board was also concerned that only one member of
the Interview Committee read the personnel files of
the applicants and that there were few if any q.uestions
concerning one of the qualifications required, supervisory
skill. The Soard was also cor,cer?.ed that the eecisic? to rest ex clusi.Fely on r5.e 1 --c.".:ie\,g. seemec ^..___.
That case see??5 to 2s zc 20 s:r:<:?.~ly srT?::?.r -3 ,.
this 0F.e. In this case none of :bi.e ne.zbers oi ::*.e
Selection Ccnn-itte.2 reac :::.e >3ersznr.e1 files cf anv
of the applicants. T';-,;ls s+.z‘ms -kc, "5 aeL C!-IP -cry _
,rllni.~ur: to have k,??r. cnl2s2a?. 120 rer;?ers of f.hS se 1 p c -- - on Boa r ,:: ;ie r E "p r sop. s ,h':-, '2 ;, 2 r: 2. : r -2 c -- 1 '_. 5 '2 2" : - . - :,.< c-i ;..1. ,.i +,-~, --r-i. ,z:2t,2s < ,? .: yT.'l .' Ai 1%~. k.CL.;.z, ,-,~>,.I..
i ” 17.
persons were obtained and utilized. One of the questions asked concerning knowledge of the grievance
process is one which we have some difficulty finding
to be relevant. .,. Id. at p. 8.
There is no question that the lack of reference to personnel
files and absence of reports from supervisors were significant
factors in the decisions in both Quinn and Eoffman.
In the present case, however, the ill effects of
these deficiencies were ameliorated by other conditions which existed
in the interview. Two of the three members of the panel possessed
considerable background knowledge regarding the skills and
abilities of the grievors. Mr. LeFevre testified that prior
to being promoted two and one-half years ago, he spent eleven
years as Mr. Renton's immediate supervisor. Re also testified
that it was his knowledge of Mr. Renton which led him to include
the latter in the field of applicants who were presented for
interview. Apparently, Mr. Renton's application was sketchy
and did not include a resume.
For this reascn, his application
would have been screened out if it had not been for tne interventicn
of Mr. LeFevre: Mr. LeFevre added in his testimony that he
was so concerned about the inadequacy of :.!r. Rentcn's a;~licaticr.
t.;.at he sdsgested co Mr. .n.e.qton ::qat after t?.e cm~e~i~i2-. c?!.;..-
siol;lC: sit down 2r.d have a c;-,at. i:is DC~~CS+ :- -='-;rc :;i..is _.. .I.-.-.i.i .
s'uggestlon, he testifieti , iias t 0 ;3- .y F ! L; 1 7. t 1 I.1 r . 3 ,‘ r. cc y, :-, .;,j:
he ccz!? better presen: hizsflf at - i. i. ; 2 .-~ : i c ;. t i c' y, -"'- '__ 5 - ,2 s .-
18.
Mr. Harney, who was the one member of the committee
who did not have personal knowledge of either of the grievors.
testified that he and the other committee member; ?Ir. C.
Alexander, were filled in by Mr. LeFevre on ?!r. Renton's
background and experience. He went on to testify that or.
Alexander, having been the supervisor of the ether grievor,
Kr . ROSS, for a number of years briefed the members on the
background that he knew of the latter.
In light of this evidence, which was not disputed,
it must be concluded-that any prejudice which might have arisen
as a. result of the deficiencies was mitigated by the briefing
process which was undertaken by Messrs. LeFevre and Alexander.
There was nothing in the evidence to indicate that these briefings
were anything but objective. On the evidence, neither of these
persons had any reason to be dishonest, biased or actuated by
malice or ill will. Certainly, in the interests of fairness, it
would have been preferable for the members of the panel to have
obtained this background information from the more usual sources,
but it cannot be said in the circumstances that these flaws in
procedure were sufficiently serious to have impaired the ability
of the panel properly to assess the relaclve qualifications and
abilities of the candidates.
19. .
that when a written test is used as part of a selection procedure,
it is appropriate for a board of arbitration to review it for
reasonableness. In Re Communicaticn Workers of America, Local
C-9 and Northern Electric Co. Ltd. (1969), 20 L.A.C. 222 (Palmer),
the q?uestion of reasonableness was tested in five categories:
"(i) the reason for the institution of the test; (ii) the
adequacy of preparation for the test afforded tne griever;
(iii) the administration of the test...: (iv) the reliability
of the marking of the test: and, finally, (v) the relevancy
of the test to the work to be done." Id. at p, 225. Three -
of these categories were at issue in the present case, i.e.,
adequacy of preparation, administration, and reliability of
marking. It appeared to be common ground between the parties
that management had a legitimate reason for instituting the
test, i.e., as a further indication of ability to perform the
job. Moreover, no question was raised regarding the relevance
of the test to the work to be done. .
Certainly, the most serious deficiency resided
in the area of adequacy of preparation. It was undisputed
that.none of the. candidates received any prior nctification
that a written test would be administered. The grievers
,
20.
some complaint that they were unable to complete it in the half
hour alloted and that it appeared that more time should have
been given. The potential for prejudice arising out of the
short amount of time was enlarged, it was submitted, by the
fact that marks were not allocated on the test paper to indicate
which questions were worth more, and so should either be tackled
first or given more time. Xeference also iias made to the fact
that a diagram which pertained to the‘fifth, and weightest,
question, was difficult to locate, thereby causing the candidates 1..
additional lost time in sorting out the confusion.
Finally, with respect to marking, the attention of
the Board was drawn to the fact that only one member of the
panel, Mr. LeFevre, had sufficient expertise to score the
questions on the written test. It was submitted that this unduly
placed in the hands of one member of.' the panel a significant
part of the responsibility which belonged to all-three.
Considering these submissions, it goes without saying
that the Board finds disturbing 'he =act that a written test LA .
was administered without any prior notice to the applitants.
Lt seems to the Eoard that being required to take a written
.
‘7 ’ 1
21.
to affect the outcome. Moreover, being denied notice, and hence
an opportunity to prepare, a candidate,whose work might net
involve consulting manuals, etc., could be prejudiced in relaticn
to candidates with different backgrounds.
There was, however, little evidence to indicate that
such prejudicial effects act-ally resulted in the present case.
Mr. ROSS did testify that he was "thrown a bit" by the requ!.rese:t
and.was not prepared to write a test. Hr. Xenton's testimony
was neutral on the issue. There.was no indication that Mr.
Cunningham's emotional response to the test requirement was
any different from that of eitiier of the grievers, nor was
it slubmitted that due to the nat.ure of his 2reviocs emplo-yment,
he would have been more familiar than the grievors with the
subject matter in the test. In the absence of more convincing
evidence, it must be concluded that the lack of notice in this
case did not substantially prejudice the grievor's.
22.
allocated marks among the questions for the guidance of the
candidates, the absence of such an allocation cannot be regarded
as unfair--particularly in light of our conclusicn that it
was appropriate to allocate a half hour to the test. In this
regard, it . is noted that no complaint was made regarcing the
fact that the panel did not advise the candidates of the marks
allocated to each of the oral questions. As to the confusion
resulting from the inability of the candidates to locate the
diagram, the Board,.notes that Xr. ROSS, who raised this issue
in his testincr,y, nevertheless received eight marks for the
question while the succes~sful incumbent, Mr. Cunningham, received
only three.
Likewise, it does not seem to be possible to discern
any unfairness in the way in which the tests were marked.
The evidence indicated that while Mr. LeFevre was responsible for
assigning each test paper an initial score or mark, the test
papers 0: the candidates were circulated to the other members
of the panel and the marks were discussed. ?or their guidance,
‘the ether members of ~the panel had before them in typewritten
form the questions and sample answers which had been drafted
by .v.z. Lecevre . $1,'. .?arney testified that rhis information
scfticec! to enable him to evaluate a cen~id2ze's res?ozse for
cc.T,-'$-s?a .-,.-s-c. ?: 2 i ~, F i n - - ,= . - L - -^cPb-c b.._i_ if - i ,5 _ = r ': i _..- .._... A..-3.7 :.:r. L ,-= TS .,. - 2
as,;ic:r.ed se.23~~~ to 'be too hici CT toe Ic,.G, :?e \;o~z-ld as!.:. :-: 5
23.
added that after all the candidates had been interviewed on
a particular day, the panel reviewed all oral and written answe:s
along with the ass,iqced marks, in order to ensure that nothin?
was missed.
In summary, it must be concluded that while the lack
of pri or notice of the written test could have led to a finding
of unreasonableness, this deficiency was not so sev,ere in the
present case as to have prejudiced the grievors in relation to 1.
the inc*umbent, Mr. Cunningham. ~11 other categories of the
test of reasonableness were satisfied. It should be added that
the potential for prejudice to the grievers w,as further reduced
by the fact that the test did not play a dominant role in the
.selection procedure. It was worth a total of 27% of the score.
Further, there was no doubt that the questions on the test
were'reievant to the work to be done. These factors place ,a
considerabie distance between the present case and 2e Municibalitv
of Toronto and Metrouolitan Civic Emolovees Union, local 43
(1982)., unpublished award (Carter), where a written test was
found to be unfair because it was used as a screening device
for all applicants, and hence, xas crucial, and "the content
~Of the exam did not bear a reasonable relationship :c the actual
recA.<ire.?ects of the job." Id.' at p. 14. -
III. RELATIVE EQUALITY: -
24.
kind of clause which is found in many collective agreements,
whereby the senior applicant is entitled to the promotion if
he or she possesses the minimum amount of skill and ability
required to perform the work. Article 4.3 is more restrictive.
It provides that seniority does not become a factor -- even
in cases where the senior employee meets the r.imimn-n requirements
for the job -- unless his or her qualificaticns a.nd ability
are"rllatively eqcal" to those of a zore junior ap?licar.t.
In reviewing the decisions of management upon the iss.ue of relative .'.-
equality, this Board is required "to compare the relative qualifi- -
cations and ability of job applicants, and, if satisfied that
the employer erres, to substitute its judgment as to relative
ecuality for that of the employer." 2e Remark ar.d Einistrv
of Revenue, G.S.3. No. 149/77 (Swinton), ay 2. 4. This wide
scope of review, i.e.; review for correctness, derived from
a change in the collective agreement which took place some time
in 1977. See Id. at pp. 3-4. -
25.
the decree of Sifferer,ce amono the candidates was alequately
The qrievzr.ces are ~ismissel.
DATED at London, Ontario, this 10th day cf Yarch,
1986.
Vice-Chairzen
S. dnnkley, !.;ember