GSB#2015/99
UNION#00D168
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(McDougall)
Grievor
-and-
The Crown in Right of Ontario
(Ministry of the Environment)
Employer
BEFORE Nimal V. Dissanayake Vice-Chair
FOR THE GRIEVOR Ursula Boylan
Counsel
Koskie, Minsky
Barristers & Solicitors
FOR THE EMPLOYER Lucy Siraco (Counsel on November 27, 2000 only)
Yasmeena Mohamed
Counsel
Legal Services
Management Board Secretariat
HEARING November 27, 2000; May 15 and 16, August 8 and 9, and September 18 of 2001.
DECISION
This decision deals with a grievance dated November 5, 1999 filed by Mr. Doug McDougall (“Grievor”). In essence, he alleges that the employer contravened article 6.3.1 of the collective agreement by awarding a posted vacancy for the position of Investigations Officer (Environmental Officer 5) at St. Catharines, Ontario, to Mr. Gordon Jenkins.
The incumbent, Mr. Jenkins, received proper notice of this proceeding in advance, but did not attend on the first three days the Board convened. However, he did appear on August 8, 2001, by which time the union had completed its evidence in chief. On August 8, 2001 Mr. Jenkins made a number of requests. It was submitted that the union had ignored his repeated requests that he be provided with a lawyer to appear on his behalf before this Board. Through a written submission filed in advance of August 8, 2001, Mr. Jenkins sought an order forcing the union to appoint a lawyer paid for by the union, to represent him. The Board ruled that it had no jurisdiction to make such an order.
Alternatively, Mr. Jenkins advised that he was considering retaining counsel himself, and further that he was contemplating filing a complaint before the Ontario Labour Relations Board with regard to the union’s conduct in response to his request that he be provided with a lawyer. Mr. Jenkins requested that the Board indefinitely suspend any further proceedings relating to Mr. McDougall’s grievance, until he has had an opportunity to pursue those matters. It was his position that subsequently this proceeding should recommence de novo before a differently constituted Board.
The union strongly objected to each and every request made by Mr. Jenkins. Indeed, counsel took the position that since Mr. Jenkins had not appeared on three prior hearing dates, he had thereby waived his right to any further participation in this proceeding. The employer stated that it agreed with Mr. Jenkins’ request that further hearings be suspended while he pursued his options. However, counsel reserved the right to object to Mr. Jenkins’ request that upon resumption, the hearing be recommenced de novo.
After receiving submissions the Board made the following ruling:
The Board has considered the positions of the respective parties and rules as follows:
The Board disagrees with union counsel’s position that as a result of his failure to appear on the previous days, Mr. Jenkins has waived his right to any further participation in this proceeding. As a proper party in this proceeding Mr. Jenkins received notice. By his failure to attend on the hearing days what he lost was the right to any further notice. However, he continues to have the right to appear and participate in this proceeding, with or without counsel, at any time if he chooses to do so. Indeed, if and when he advises the Board he intends to commence attending, he will from then on be entitled to notice of future hearings.
However, that ruling does not determine the issue of Mr. Jenkins’ request that this proceeding be adjourned sine die. After careful consideration the Board has determined that it ought not grant the adjournment.
Mr. Jenkins’ dispute is an internal issue with the union. This Board has no authority to assess the merits of his dispute with the union. At the present time Mr. Jenkins is still considering filing a complaint against the union before the OLRB. If he decides to do so and if the OLRB rules that the union had contravened the Ontario Labour Relations Act in the manner it represented him, Mr. Jenkins is entitled to seek a remedy against the union for all loses that resulted from its breach, including any loss he may have suffered before the GSB.
As a general policy, the Board should be reluctant to adjourn indefinitely proceedings properly before it where issues within its jurisdiction are raised, merely because a party to that proceeding is contemplating filing an action before another tribunal on other issues. In this case, it is particularly inappropriate to adjourn because the issues that Mr. Jenkins wishes to raise before the Board crystallized in November 2000, and he is still unsure whether he would in fact be proceeding before the OLRB. Granting Mr. Jenkins’ adjournment would result in suspending indefinitely the grievor’s right under the collective agreement and the Crown Employees Collective Bargaining Act to have this Board determine his grievance. In balancing the competing interests of the grievor and of Mr. Jenkins, the grievor’s interest must prevail in the particular circumstances. The grievor will be able to seek a remedy form the OLRB for any losses resulting from the union’s alleged breach, if his complaint is upheld. Accordingly the request for adjournment is denied.
Mr. Jenkins then indicated that he would not be attending any further hearings and left. The hearing continued on that day and on subsequent days in his absence.
The evidence indicates that the job competition in question was held in October 1999 to fill a vacancy in the St. Catharines office of the Ministry of Environment’s Investigation and Enforcement Branch for the position of Investigation Officer, classified as Environmental Officer 5 (hereinafter referred to as the “investigator” position). It is agreed that from November 4, 1989 up to the time of the competition in October 1999 (a period of approximately ten years) the grievor had held a position at the Ministry’s Branch office in Timmins, Ontario, which was identical in title and classification to the posted position. It is also beyond dispute that the Investigator position in Timmins which the grievor had held for ten years was governed by the same position specification that governed the posted St. Catharines position. In other words the grievor had performed in the same capacity as the posted position for approximately ten years, and had ten years of seniority. In that period he performed almost all of the duties in the position specification, including investigation and enforcement under specific environment related legislation.
In contrast, the incumbent Mr. Jenkins applied from outside the Ontario Public Service. He had extensive investigative and enforcement experience in the 25 years he spent as an officer of the RCMP. However his experience was limited to offences under the Canada Criminal Code. He had no experience whatsoever investigating under and enforcing any legislation governing environmental issues.
The evidence indicates that as part of the selection process some 13 applicants went through a formal interview process. As a result of the scoring of the interviews, Mr. Jenkins received the third best score of 65½ out of 96. The grievor was ranked 10th out of 13 candidates with a score of 36½ out of 96. The two top scoring candidates declined the position. As a result, Mr. Jenkins was awarded the position.
The union sought an order directing that the competition be re-run. Its primary position is that the selection process followed by the employer was so fatally flawed that it did not result in a fair and complete assessment of the applicant’s qualifications and ability for the posted position. The union takes the position that the employer relied solely on the interview scores and determined that an employee who had competently performed for a period of ten years in the very position that was posted, was not relatively equal in qualifications and ability to someone who had never worked in that position. It is submitted that, other than relying on the interview scores, the employer failed to take any of the steps it was obliged to take under well established jurisprudence of this Board. It is argued that for this reason alone the results of the selection process should be declared invalid and a re-run of the competition should be ordered.
In the alternative, the union alleges that the interview process itself was seriously flawed. Many complaints were made including inconsistent scoring, incorrect expected answers, misunderstanding of answers and failure to give credit for correct answers. It was submitted that if these defects did not occur, the grievor would have received a much higher score, to be at least within relative equal range as compared to Mr. Jenkins.
The employer denies that it relied solely on the interview results. It is submitted that it fulfilled all of its obligations as set out in the case law. It is also the employer’s position that the interviews were conducted in a fair and reasonable manner. In the alternative, the employer contends that if the Board finds flaws in the selection process or in the manner the interviews were conducted, that should not result in a re-run of the competition, specially considering the huge gap in the ranking achieved by Mr. Jenkins as compared to the grievor. In other words, even if the defects did not exist, that would have made no difference to the ultimate outcome of the selection process.
The provision of the collective agreement that governs the instant grievance is article 6.3.1 which reads:
In filling a vacancy, the Employer shall give primary consideration to qualifications and ability to perform the required duties. Where qualifications and ability are relatively equal, length of continuous service shall be the deciding factor.
The various criteria by which an employer may assess qualifications and ability under that provision has been the subject of discussion in numerous Grievance Settlement Board decisions. These have been summarized in the following often quoted passage in Re MacLellan and Degrandis, 506/81 (Samuels):
The jurisprudence of this Board has established various criteria by which to judge a selection process:
Candidates must be evaluated on all the relevant qualifications for the job as set out in the Position Specification.
The various methods used to assess candidates should address these relevant qualifications insofar as is possible. For example, interview questions and evaluation forms should cover all the qualifications.
Irrelevant factors should not be considered.
All the members of a selection committee should review the personnel files of all the applicants.
The applicants’ supervisors should be asked for their evaluations of the applicants.
Information should be accumulated in a systematic way concerning all the applicants.
See Remark, 149/77; Quinn, 9/78; Hoffman, 22/79; Ellsworth et al, 361/80; and Cross 339/81
The union’s primary contention is to the effect that the competition should be re-run because, in its view, the employer’s selection process was seriously flawed in the manner it went about evaluating the qualifications and abilities of the applicants to perform the duties of the posted position. In this regard, the Board must consider first whether the selection process was flawed. Secondly, if flaws are found to exist, the Board must determine whether the flaws were so significant to cause it to intervene and set aside the result of the employer’s selection process.
The job competition in question was “open”. It was internally posted and also published in the Ontario Public Service publication “Job Mart”, and the newspaper “Globe and Mail”. It states that the Ministry was seeking “a motivated investigative professional to investigate a large caseload of environmental offences”. Among the qualifications required is “Demonstrated experience in environmental or criminal enforcement.”
The position specification, (which as already noted was common to the posted position as well as the Investigator position in Timmins held by the grievor for ten years) sets out the purpose of the position as “To conduct investigations under the direction of the Supervisor - West Central Region, of individuals or companies alleged to have contravened a variety of environmental legislation and/or legislated instruments and to carry out a variety of related enforcement activities.”
By far, the highest weighted (60 percent) of the “duties and related tasks” set out in the position specification, contains the following preamble:
Conducts investigations within an assigned geographic area, into offenses of the Environmental Protection Act (EPA), the Ontario Water Resources Act (OWRA), the Pesticide Act (PA), the Environmental Assessment Act (EAA), the Niagara Escarpment Planning and Development Act (NEDPA), their regulations and other related legislation by:
(list of tasks omitted)
The employer’s own selection criteria for the Investigator position was also in evidence. The highest weight (30 percent) was assigned to “Investigative/ Environmental Experience” consisting of two items. One of the two items states:
Demonstrated experience in environmental enforcement including conduction inspections, developing abatement programs, preparing and issuing control documents, participating in public meetings and preparing and filing occurrence reports.
The next highest weight (20 percent) was for “Investigative/Environmental Knowledge” consisting of two items, one of which reads:
A demonstrated knowledge of safe sampling procedures, pollution control theory, a basic understanding of industrial processes, an ability to make a preliminary assessment of pollution on the environment.
The foregoing clearly establishes the following. First, that the purpose of the position was to investigate violations of a number of specific statutes related to the protection of the environment. Secondly, it is evident that a demonstrated experience was required in “environmental enforcement”. Thirdly a demonstrated knowledge was expected with regard to environment related issues such as pollution control and industrial processes.
With those observations, I turn to consider whether the employer’s selection process adequately assessed the qualifications and abilities to perform the duties of the posted Investigator position.
The first issue is whether the selection panel evaluated the candidates on all of the relevant qualifications for the Investigator position. As noted, the purpose of the Investigator Position is stated in the Position Specification as investigation of offences under specific environment related statutes, and to enforce those statutes. Sixty percent of the duties of the job is stated to be, the investigation of offences under the Environmental Protection Act, the Ontario Water Resources Act, the Pesticide Act, the Environmental Assessment Act, the Niagara Escarpment Planning & Development Act, their regulations and other related legislation. The “skills and knowledge required” set out in the position specification includes “a thorough knowledge” of those statutes and regulations made thereunder. The evidence is clear that Mr. Jenkins, as a RCMP officer, had no dealings with any of the environment related statutes. The employer did not assert that Mr. Jenkins had knowledge of these statutes to any degree. Nor did Mr. Jenkins’ interview answers disclose any knowledge with regard to the specific statutes. In contrast, the evidence is that the grievor, in his ten years as an Investigator at Timmins, had regular dealings with all of the specified statutes, except the Niagara Escarpment Planning and Development Act, and therefore did have a thorough knowledge of the same. The employer utterly failed to assess this key qualification set out in the Position Specification with regard to the environment related legislation. If it did, it would have been led to the inescapable conclusion that the grievor was far superior than Mr. Jenkins in that regard.
A second major flaw in the employer’s selection process relates to the requirement that all members of a selection committee should review the personnel files of all of the applicants. The evidence is that the grievor’s file included a performance appraisal completed by the grievor’s supervisor in July 1995. This evaluated the grievor’s work performance over a period of 22 months in a position identical to the position for which he had applied. In this appraisal the grievor’s overall performance is rated as “superior”, which is defined as “consistently met and frequently exceeded job expectations”. The undisputed evidence is that none of the members of the selection panel reviewed this performance appraisal and it formed no part of the assessment of the qualifications and ability. The employer admits that fact, but submits that the particular appraisal is irrelevant because it had been done four years earlier and therefore “outdated”. The Board does not accept that position. It is within the employer’s sole authority and control to conduct regular appraisals of its employees’ work performance. The evidence is that the 1995 appraisal was the most recent one done for the grievor. The employer cannot simply ignore that. At the very least, it has the obligation to review it and make inquiry, for instance by consulting with the grievor’s more recent supervisors, as to whether the grievor had maintained or improved upon his “superior” performance since 1995, or whether his performance had deteriorated. There is no evidence before this Board to indicate that there were any concerns related to the grievor’s work performance that would lead to a conclusion that his performance had deteriorated since the appraisal was done in 1995. The employer made no inquiry in that regard, as part of its selection process.
Finally, the Board turns to the question of whether the selection panel asked the applicants’ supervisors for their evaluations of the applicants. In dozens of cases going back many years the Board has repeatedly held that a selection panel must conduct reference checks with all of the applicants’ supervisors as part of the selection process. Employer counsel submitted that this was done. However, the evidence does not substantiate that. The employer’s own evidence was that according to its chosen procedure, reference checks were to be done only for the three top scorers in the interviews. The chair of the interview panel testified that at some point subsequent to the interview process he did speak to a supervisor with regard to the grievor. However, by his own admission, by then the decision had been made as to who the successful candidate was. Mr. O’Neill testified that by then the grievor was “no longer in the running”. He talked to the grievor’s supervisor, not as part of the consideration of the grievor’s suitability to fill the vacancy, but to satisfy his own curiosity after the fact, as to why the grievor had scored so poorly in the interview. It was not part of the selection process.
In summary, the Board finds the following flaws in the selection process which resulted in the appointment of Mr. Jenkins. First, a significant and highly weighted qualification specified in the position specification, and enumerated in the employer’s own selection criteria - a thorough knowledge of a number of named statutes - was not assessed. In this regard the employer took the position, and Mr. O’Neill testified, that there was no intention to restrict the competition to applicants with experience in the investigation and enforcement of specific environment related legislation. It was pointed out that Mr. Jenkins had extensive experience in investigating and enforcement of the Canada Criminal Code and that this experience would have been adaptable and transferable to the enforcement of the environment related legislation. The Board has no reservations with regard to Mr. Jenkins’ investigative and enforcement skills. It is likely that within a short period of time, Mr. Jenkins would have been able to adapt his experience and knowledge of investigative techniques gained as a RCMP Officer to be able to perform capably in the Investigator position. However, that is not the test under article 6.3.1 to which the employer had agreed. The employer has undertaken to give primary consideration to “the qualifications and ability to perform the required duties”. A significant “skill and knowledge” required in the position specification is “a thorough knowledge” of the specified environment related statutes and regulations thereunder. Thus it follows that the employer, as part of its selection process, was obliged to assess the relative knowledge possessed by the applicants of those statutes. Unfortunately, the employer did not do so. [For a discussion with regard to general qualifications as compared to qualifications with regard to specific duties required in the posted position, see Re Saras, 457/85 (Swan)].
Secondly, and even more significantly, the employer failed to consider an extremely relevant and reliable piece of objective information with regard to the grievor’s qualifications and ability to perform the duties of the posted position - namely his performance in the identical position over a period of nearly ten years. The members of the selection panel did not review the grievor’s personnel file and therefore did not become aware that in the most recent appraisal, the grievor was rated as “superior” in the performance of the duties of the Investigator position. Moreover, no reference check was done with the grievor’s supervisors, who would have had first hand knowledge about the quality of the grievor’s performance of the very duties required in the posted position. Instead, the employer, essentially made its decision on the basis of the results of the interview.
In this regard in Re Liblik/Scipnek, 2525/91 (Dissanayake) the Board stated at p. 19-20:
As the Board has stated on many previous decisions, the employer is entitled to conduct interviews and/or tests to assess the candidates’ relative qualifications and abilities to perform the duties in a posted position. Where the employer has no evidence before it, which is more reliable than the performance at the interviews, it may have no choice but to rely solely on the interview scores. However, where some candidates have actual employment experience, particularly in the posted job itself, the evaluation of their performance on the job must usually by preferred to the interview results. At the very least, that must be given serious consideration in the overall assessment of the employee’s qualifications and ability to perform the duties of the posted position.
Similarly in Re Hall/Powers, 716/89, 866/89 (Gorsky) at pp. 18-20 the Board observed:
There may be misgivings about tests based on their usually having been prepared by persons who have not had them properly validated. That is, they are usually tests prepared by amateurs, albeit usually amateurs with knowledge of the qualifications and abilities required to perform the duties associated with the job. However, if those who prepare and administer the test meet certain criteria, tests have been given considerable weight in assessing qualifications and ability. See Brown and Beatty Canadian Labour Arbitration (Third Edition), at para 6:3340. Panels of the Board have not insisted that the creation, administration and evaluation of a test be an exercise in perfection. At the same time, in looking for objective evidence which would assist a panel to evaluate the candidates’ qualifications and ability, where the job posted is one where the candidates have had substantial ongoing experience, and where their performance of the job has been observed and reviewed by representatives of the Employer, the evaluation of the candidates’ actual performance on the job usually must be preferred to a test, especially where the test of actual experience on the job conflicts with the more theoretical test.
Unfortunately, the Employer in carrying out its responsibilities, although its representatives acted in good faith throughout, overlooked significant objective evidence concerning the qualifications and ability of the applicants. There was available to the Employer objective evaluations made by supervisors over a considerable period of time, of the functioning of the applicants in the very position that was the subject of the posting. They also had the means of obtaining oral assessments from supervisors. Only ten out of one hundred and fifteen marks were given to an applicant who had obtained the status of a Correctional Officer 2. As far as can be determined, no attempt was made to evaluate the qualifications and ability of the applicants to perform the required duties and responsibilities of the position based on their actual performance of the Annex Correctional Officer job.
On the evidence, we must find that Mr. Hall not only performed the work of an Annex Correctional Officer extremely well when he was required to perform that job, but that he was seen to do so by his supervisors. There was no suggestion that either of the other two applicants were evaluated on the basis of their on-the-job performance as being any better than Mr. Hall in terms of their qualifications and ability to perform the duties of the job.
Nevertheless, we are asked to virtually ignore the reality of actual on-the-job performance in favour of an evaluation which awarded 87 per cent of the marks to the written and oral tests. The tests may indeed contain questions and requirements which are job related. However, unlike an evaluation of actual job performance, they are mainly a test of potential.
In Re Poole, 2508/87 (Samuels) the Board stated at p. 6:
At the interviews, a series of questions were asked of each candidate to elicit information concerning the candidates qualifications and experience. And then the candidates were scored on these answers, without any regard to the information on the application forms, or information which might have been found in personnel files, or information from the applicants’ supervisors at the Hospital. Apparently it is Ministry policy to base its decision entirely on the scores at the interview.
If this is the Ministry’s policy, then it is absolutely incomprehensible to us why it should be so. This job competition had to be done according to the collective agreement. Article 4.3 provides:
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.
And this Board has explained in detail many times what is required to fulfil the requirements of Article 4.3...
There must be a full gathering of information concerning the qualifications and ability of the applicants. It is not satisfactory to consciously ignore information as was done here. For some reason, the grievor did not do well at the interview ... and the three members of the panel were left with the impression that the successful applicant had better qualifications and experience than the grievor.
In Re Sauve, 1695/91 (Gray) at p. 19 the Board wrote:
The Board has repeatedly observed that qualifications and abilities should not be assessed solely on the basis of an applicant’s performance during the selection process. Past job performance, particularly of similar job functions, must also be considered and given appropriate weight. The Board has found Article 4.3 contravened when the selection committee relied exclusively or unduly on interview results and gave too little or no weight to past performance in assessing qualifications and ability: Christmas and Chaput, 907/86 (Gandz); Skagen and Glemnitz 1934/87 (Springate); Poole, 2508/87 (Samuels); Hall/Powers 716/89 (Gorsky). It is not enough to treat past related experience as a basis for pre-interview screening and ignore it thereafter - past related experience must be given weight in assessing the relative qualifications and abilities of the final candidates: Nixon, 2418/87 (Fisher); McIlwain, 628/89 (Verity).
Employer counsel argued that if the employer failed to give proper consideration to the grievor’s experience in the Investigator position at Timmins, the grievor must take responsibility for that. It was pointed out that in his job application and attached resume, the grievor gave a detailed description of the duties he had performed as a police officer, but gave no information about the duties he performed in the Investigator position in Timmins. I find this position to be without any merit. The undeniable fact is that the grievor was employed with the Ministry’s Investigation and Enforcement Branch for some ten years and was seeking a position in a different office of the same branch. In his letter of application the grievor wrote “I have been with this Ministry and in particular this Branch since October/89. If you have any questions regarding my resume or application, please feel free to call me at (telephone number omitted)”. He attached a resume in which under “Employment Data” he recorded that “from October 1989 to present” he was an “Investigator at the Ministry of Environment, Investigations and Enforcement Branch, Timmins, Ontario.” In the Board’s view, the employer should and would have known that the grievor was employed at the Branch as an investigator even if the grievor had not drawn it to its attention. No evidence was adduced that the selection panel was unaware of that fact. Indeed, Mr. O’Neill testified that he was surprised about the grievor’s low score in the interview because he was aware that he had been employed as an investigator at the Branch in Timmins for many years. Even if the panel members had no actual knowledge of the grievor’s employment with the employer as an investigator, it makes no difference. The selection panel represents the employer as its agent for selecting the candidate for the vacancy. The employer had corporate knowledge not only that the grievor was employed as an investigator with the Branch, but through the personnel file and supervisors’ day to day involvement, it had very reliable information of the quality of his performance in that capacity. It is not necessary for the grievor in his resume to advise his own employer of the duties he performed as an investigator. It was reasonable for him to merely report that he had been employed as an Investigator and assume that his own employer would be aware of the duties of an Investigator as specified in the common position specification. This is more so because the grievor in his letter of application explicitly invited the employer to contact him regarding any questions regarding his resume and application.
The Board concludes in light of all the foregoing that the instant competition fell far short of the standards required by article 6.3.1 as interpreted by well established and long-standing case law. The process was so seriously flawed that a proper assessment of qualifications and ability as required by article 6.3.1 did not take place. Thereby the employer contravened article 6.3.1.
Remedy
Since the grievor continuously held an investigator position equivalent to the posted position, the union advised that he suffered no pecuniary loss. Similarly, since the union’s position (which has been upheld in this decision) is that the employer did not engage in a proper assessment of the applicants’ qualifications and ability, the union did not claim that the grievor had a right to be appointed to the posted position. Rather, its sole remedial request was that the competition in question be re-run.
The employer takes the position that in the particular circumstances of this case, the grievor is not entitled to any remedy. It is counsel’s position that before the grievor becomes entitled to a re-run of the competition, he has the onus to satisfy the Board, that if the proven flaws did not exist, he would have been relatively equal to Mr. Jenkins in qualifications and ability. Counsel points out that there was a very wide margin in the respective interview scores achieved by Mr. Jenkins and the grievor. Mr. Jenkins scored 66½ out of 96, while the grievor only got 36½ out of 96. Thus it is argued that the grievor must establish that if the employer had avoided all of the defects and conducted a competition in compliance with article 6.3.1, he would have been found to be at least relatively equal in qualifications and ability to Mr. Jenkins. The employer contends that the grievor failed to discharge that onus because given the “wide-margin” it was not possible to prove that.
The Board notes that the union, as an alternate ground in support of the grievance, attacked the interview process in a number of aspects and argued that its results are unfair and unreliable. Given the Board’s finding that the competition was fatally flawed because of the employer’s failure to properly assess the qualifications and abilities of applicants, the Board does not have to deal with the union’s challenge of the interview process itself. However, even assuming that the interview scores can be relied upon, the employer’s position has no merit in this case where the remedy sought is not an award of the posted position but a re-run of the competition. This issue has been addressed in prior decisions of this Board. In Re Lee/Savarimuthu, 1344/88 (Roberts) at p. 27 the Board stated:
In most wide-margin cases, it is very difficult for a grievor to achieve total victory, in the sense of being placed in the job. First, the grievor must show that the competition was so flawed as to be fundamentally unfair, and hence invalid. Secondly, the grievor must show that if the competition had been run fairly he or she would have been the successful candidate. If the grievor fails to make this second showing, his or her relief will be limited to a re-run of the competition.
In Re Sauve, 1695/91 (Gray) the employer’s position was exactly the same as the position taken by the employer here. The Board disagreed and wrote at pp. 29-30:
The union submits that to be entitled to a re-run, which it asks for in the alternative to an award of the position to the grievor, it should not be required to prove on a balance of probabilities that the grievor would succeed in a properly conducted competition, but only that he might succeed. The employer says, however, that the D. Bent award correctly describes what the union must establish in this case. It argues that before there can be any remedy for a defective selection process, the grievor must show that the grievor would have been the successful candidate if the selection process had been properly conducted.
If the union proves what the employer says it must prove before the grievor can have any remedy - if it proves that the grievor would have been the successful candidate if the selection had been conducted in accordance with the requirements of the collective agreement - then one is bound to ask why the remedy for which he thus qualifies should not be a direction that he be treated as the successful candidate and given the job in question.
In the present case, the Board is satisfied that if the competition is re-run, and the grievor’s performance in the investigator position over a period of ten years is given due consideration by a proper consideration of information available from supervisors as well as in the personnel file, and if the employer properly assess all of the skills and knowledge set out in the position specification, it might affect the ultimate result of the competition. In order to be entitled to a re-run of the competition the grievor need not go beyond that and prove that he would have succeeded.
Accordingly the Board allows the grievance and directs that the employer re-run the competition for the posted position in compliance with article 6.3.1. The re-run competition shall be restricted to those applicants who originally applied for the posted position.
Dated at Toronto, this 12th day of October, 2001.