GSB# 2006-1007

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Association of Management, Administrative and Professional Crown Employees of Ontario (Alderson)

Association

• and -

The Crown in Right of Ontario (Ministry of Children and Youth Services)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE ASSOCIATION

James K. McDonald Sack Goldblatt Mitchell LLP Barristers and Solicitors

FOR THE EMPLOYER

Felix Lau Counsel Ministry of Government and Consumer Services

HEARING

November 10, 2006; May 2 & 3, June 12, 13, 14, 2007; March 25, April 1, 2, 9, 10, May 21, 2008.

Decision

Ms. Mary Alderson (“grievor”) has filed a complaint dated December 15, 2005, alleging that the employer had contravened the collective agreement by not appointing her to the position of Health Care Coordinator (“HCC”) at the Sprucedale Youth Centre in Simcoe, Ontario, following a job competition for that position. The successful applicant was Ms. Catharine Legault. She received appropriate third party notice, attended the hearings, and was given the opportunity to fully participate as a party to the proceeding. The job posting for the Sprucedale HCC position was “open”. The grievor was an internal candidate, while Ms. Legault was from outside the Ontario Public Service.

The authority of an arbitrator in a complaint such as this is explicitly addressed in article 18.6 of the collective agreement as follows:

Unfair competition complaints shall be processed in the same way as other complaints under Article 15, except for the following. Where a complaint is submitted to arbitration:

(a) The arbitrator shall be empowered to determine any question of fact or law including whether any requirement of Article 18 has been followed. This includes, but is not limited to, whether the Employer (including a selection panel) has made an error in the process of assessing the applicant’s qualifications based on the evidence which was (or should have been) before it. However, the arbitrator shall not be empowered to decide who should have been selected in accordance with Article 18.

(b) As a remedy, the arbitrator may declare the competition and its results null and void, and order the competition or any part of it to be run again with directions as to how it is to be conducted.

(c) Notwithstanding Article 18.6(a), where a competition complaint involves the application of Article 18.3.2, the arbitrator may award the job in question to the complainant where the selection panel determined that the complainant’s qualifications and ability were relatively equal to the non- AMAPCEO unit applicant incorrectly awarded the job.

18.3.2 Where the qualifications and ability are relatively equal between an AMAPCEO unit applicant and a non-AMAPCEO unit applicant preferences will be given to the AMAPCEO unit applicant.

It is the Association’s position that the grievor was relatively equal to Ms. Legault in qualifications and ability. Therefore, since Ms. Legault was a non-AMAPCEO applicant, I am urged to award the posted position to the grievor.

The job posting stipulated the following:

Duties and Responsibilities

Sprucedale Youth Centre, Ministry of Children and Youth Services seeks a qualified professional to direct health care services within a multidisciplinary model. Duties: plan, administer and coordinate nursing services; formulate budget recommendations; establish/review nursing programs; maintain medical supplies/equipment; coordinate medial/dental assessments; supervise health records maintenance; supervise/schedule nursing staff; consult on community treatment programs/resources; provide direct nursing care as needed; coordinate treatment programs; ensure compliance with all policies/procedures.

Qualifications

Registered Nurse in Ontario. Proven ability to: organize/coordinate the effective delivery of nursing services; supervise/direct nursing staff; plan the effective use of resources; cooperate with and understand the roles of all other staff; coordinate nursing services with internal/external programs; acquire/apply knowledge of youth justice policies/philosophies as related to heal services in secure custody.

The Association advanced the following reasons in support of its position that the grievor ought to have been awarded the position , not Ms. Legault.

(1) Ms. Legault lacked the posted qualifications for the HCC position and should not have survived the initial screening of applications.

(2) The marking of the interview questions by the panel members was inconsistent in that Ms. Legault received more generous marks than the grievor.

(3) The decision to award the position to Ms. Legault was made almost solely on the basis of the scores in the interview/test process, to the exclusion of other relevant and reliable information about the candidates’ qualifications and abilities.

The position description sets out the purpose of the HCC position as follows:

To plan, co-ordinate and supervise the delivery of an effective health care program at Sprucedale Youth Centre. To provide for general first aid treatment to residents and provide health care education, as required.

The major responsibilities of the position are listed as follows:

In a Secure Custody Young Offender facility, with a capacity of approximately 90 residents, the position co-ordinates health care services by:

1. – planning, co-coordinating and supervising nursing services for the facility;

2. – participating in the development of relevant health care policies, directives and procedures in consultation with Senior Management;

3. – ensuring the maintenance of accurate medical records and the security and recording of all medical supplies and controlled drugs;

4. – co-coordinating appointments and interviews for residents with Centre Physician, Treatment Personnel, Dentist and assorted Medical Specialists, etc;

5. – preparing, submitting and maintaining the Health Care Unit Budget;

6. – providing direct nursing care to residents as required, i.e. promoting health, maintaining and improving health of residents;

7. – supervising all subordinate nursing staff including selection, training, assigning duties, scheduling work, approving additional hours when required and recommending merit increases, promotion, discipline, handling of grievances, etc..

The selection process commenced with the screening of applications. Of 21 applications received, only 5 survived the screening. Those five applicants were invited to the interview stage. Two declined. Ms. Legault, the grievor and Ms. Beverly Gould participated in the competition process. After the position was awarded to Ms. Legault, the grievor and Ms. Gould grieved. However, Ms. Gould’s grievance was subsequently withdrawn. Therefore while Ms. Gould also participated in the competition, the only evidence reviewed here will be those relating to Ms. Legault and the grievor.

The grievor and Ms. Legault participated in the interview/testing process on November 1st, 2005. This process consisted of an oral interview by a selection panel at which each applicant was required to answer seven pre-determined questions, followed by a written test. In addition, the candidates were scored for “communication skills/presentation” based on their performance at the interview. The whole process was scored out of a total of 372 marks, comprised of 210 marks for the interview, 102 marks for the written test and 60 marks for communication skills/presentation. The results were as follows:

Interview: the grievor 47%, Ms. Legault 80%. Written test: The grievor 89%, Ms. Legault 97%. Communication skills/Presentation: The grievor 95%, Ms. Legault 100%. Overall, therefore, the grievor received a score of 67% while Ms. Legault received 88% for a difference of 21%.

The evidence is uncontradicted that the decision was made based on the foregoing scores. The only other step taken was to check the references for Ms. Legault. There were no references checked for the grievor or Ms. Gould. Nor were personnel files checked for any of the candidates.

The screening process

The Association’s position is that Ms. Legault’s application should have been screened out, and that she should not have proceeded to the interview stage. It is pointed out that two of the key qualifications listed in the job posting are “proven ability to organize/coordinate the effective delivery of nursing services” and “supervise/direct nursing staff.” Pointing to the position description, counsel notes that two of the major responsibilities of the HCC position are “Planning, coordinating and supervising nursing services” for a secure custody young offender facility and “to provide direct nursing care to residents” of that facility. Counsel notes that the employer screened Ms. Legault in based solely on the information contained in her resume, which was enclosed with her application. He submits that the resume does not disclose that Ms. Legault had any of those qualifications.

Ms. Legault has been a licensed Registered Nurse since 1985. Her resume indicates that from 1985 to 1993 she was employed as a Registered Nurse at several hospitals including as Charge Nurse between 1987-1990. Except for a brief period of employment as a nursing consultant for a law firm, since 1993 she had been employed in a research capacity, conducting and coordinating drug trails at McMaster University and at various Pharmaceutical companies in the private sector. In her cover letter she states that “Recently for the last 8 years I have worked as a Senior Clinical Research Associate”, and that “My primary responsibilities have been physician site management for clinical trials, regulatory documentation, site monitoring, study initiations and study closeouts”.

Counsel for the Association points out that in the job posting, the employer was seeking “a qualified professional to direct health care services within a multidisciplinary model”, who had “proven ability” to effectively carry out the listed functions. It is submitted that Ms. Legault did not meet those requirements. She had never worked in a corrections setting in any capacity. Moreover, since 1993 she had been employed exclusively in an academic/research environment, and had not been involved at all in the actual delivery of nursing services or in supervising of nursing staff providing nursing services. Since 1993 she had not been involved in hands on delivery of health care or in the supervision of nurses delivering health care.

The screening of applications was performed by Ms. Melanie Ferdinand, at the time Deputy Superintendent of the Sprucedale Youth Centre. Ms. Ferdinand testified that it was her assessment based on the resume that Ms. Legault possessed the managerial and administration skills as set out in the screening criteria, and felt very comfortable that she could transition very well into the posted HCC position. Under cross-examination Ms. Ferdinand disagreed that Ms. Legault’s resume did not indicate any experience in delivery of health care to patients since 1993. She testified that she understood that in clinical trials for drug testing there were patients involved, and that therefore Ms. Legault would have been required to use nursing skills. When Association counsel suggested that from 2004 to the time of the competition, Ms. Legault’s resume shows no indication of direct health care services to patients anywhere, Ms. Ferdinand responded that she “disagreed somewhat”, because in her view, the subjects of the drug trials were “patients”, and Ms. Legault would have been overseeing staff doing drug trials with patients. She saw that as part of delivery of healthcare services.

When Ms. Ferdinand was further questioned about Ms. Legault’s apparent lack of proven ability and experience in delivery of health care services in an institutional setting ever, (and anywhere since 1993) Ms. Ferdinand testified that applicants were screened not on the basis of the contents of the job posting, but on an application of the six screening criteria. Any applicant who met at least four of the six screening criteria was screened in. Therefore, since in her assessment Ms. Legault met that threshold, it was irrelevant whether Ms. Legault possessed experience in the delivery of health services. Any applicant who was licensed as a Registered Nurse and had good managerial and administrative skills would pass the screening, even if she had no “proven ability” to organize/coordinate the effective delivery of nursing services, and to direct and supervise nursing staff as set out in the job posting.

Ms. Ferdinand admitted that she had no first hand knowledge of what a nurse overseeing a drug trial does, or what Ms. Legault did in her past positions. The only information she had was that contained in Ms. Legault’s application, including her resume. I find that Ms. Ferdinand’s attempt during testimony to assert that Ms. Legault’s application disclosed experience in the delivery of health care services to patients, and in the supervision of nursing staff who delivered health care services to patients, was extremely unreasonable. For example, Ms. Legault’s resume indicates that from 2004 to 2005 she was employed by a law firm as a “Registered Nurse Consultant”. Despite repeated questioning on cross-examination, Ms. Ferdinand insisted that in that capacity Ms. Legault’s duties would have been part of what she considers delivery of health care to patients, namely the clients who had retained the law firm with respect to litigation. It was clear to me that Ms. Ferdinand was making that assumption without any factual information.

While I find Ms. Ferdinand’s testimony in that respect not reasonable and not credible, I nevertheless conclude that her ultimate decision to screen Ms. Legault in ought not to be disturbed. This was an “open” competition. At the screening stage, the employer is entitled to be flexible in what it demands, in order to ensure that there would be an adequate pool of applicants for the job competition, including external applicants. Ms. Ferdinand assessed that Ms. Legault’s qualifications and skills, although different from those described in the job posting, were transferable to suit the HCC position. Particularly in an “open” competition, accepting transferable skills and qualifications for purposes of screening applications is reasonable. This is recognized by the Management Board Secretariat “Manager’s Guide to Staffing in the Ontario Public Service”, February 2001 at p. 64 which provides that when screening resumes and applicants, one must “Give full consideration to applicants’ transferable skills; skills gained in one field may be transferable to another, even when the knowledge required by the positions is different.” That is a reasonable requirement, and the employer was entitled to comply with it.

In summary, while I do not accept some of the reasoning offered by the employer, overall I am not prepared to conclude that the employer’s decision to allow Ms. Legault to proceed to the interview stage should be struck. Ms. Legault had sufficient transferable qualifications and skills to pass the screening.

The marking of interview questions

The Association led evidence through the grievor on the answers she provided to the interview questions. In addition, Ms. Mary Byberg, a Dispute Resolution Officer employed by the Association testified. She had reviewed the scoring sheets for Ms. Legault and the grievor prepared by the three members of the selection panel at the interview, and created a comparative analysis of the answers and the appropriate marks that, in her opinion, ought to have been given. The employer called the three members of the panel to testify, Ms. Ferdinand who was chair, Ms. Joanne Shaw, (Manager of Corporate Health Care) and Mr. Patrick Morrison (at the time Deputy Superintendent at the Hamilton Detention Centre). Under cross-examination, each of the panel members conceded that in certain cases the grievor could have received credit for the answers she provided, in addition to the marks they had given. In his final submissions Association counsel acknowledged that despite this evidence, the Association faced an uphill battle convincing the Board that, but for the inconsistent marking, the grievor would have received a score which would have been within “relative equality” to Ms. Legault’s score. I agree. While I would not go into detail, I found generally, based on the testimony of the panel members, that they did not treat Ms. Legault and the grievor consistently in the scoring of their respective answers. They refrained from seeking clarification from the candidates about their answers. In fact the evidence was that it was a deliberate policy not to do so. However, in the cross-examination it was evident that the panel members, in many cases, interpreted or made assumptions with regard to Ms. Legault’s answers to her benefit, while the grievor did not get that same generosity. In many instances, where the grievor’s answers were not very specific and open to interpretation, or if the exact terminology was not used, it was interpreted to the detriment of the grievor. There were many instances where Ms. Legault had been credited with marks for a question, but there were no notes indicating that she provided the desired answer. When questioned, the panel members’ response was to the effect that “she must have given the correct answer” or “I must have heard something to that effect”. A similar situation was not evident in the grievor’s score sheets.

I am satisfied that this differential treatment was not a result of any bad faith on the part of any of the panel members. Indeed, the Association did not allege bad faith. However, the evidence strongly suggests that the panel members pre-judged Ms. Legault to be a very superior candidate very early in the interview process, and that this influenced their assessment of the answers provided.

Mr. Morrison testified that very early in Ms. Legault’s interview it became apparent to him that she had thoroughly researched the Sprucedale Youth Centre, and had prepared herself for the interview extremely well. Later in his testimony, he commented that in his 29 years as a manager, he had never seen an external candidate “come in and do so well”. The grievor had testified that following the announcement of Ms. Legault’s appointment, she had a de-briefing meeting with Ms. Shaw. She had asked Ms. Shaw “what went wrong with me”. Ms. Shaw’s response was to the effect “Ms. Legault just blew us away. What can I say”. During cross-examination Ms. Shaw agreed that she would have said that to the grievor. When asked whether in fact the panel was blown away by Ms. Legault, Ms. Shaw said “Yes. We were very impressed with her as a candidate”.

The Manager’s Guide to Staffing explicitly recognizes that there are certain biases which should be avoided because they may reduce the effectiveness of the selection decision. At p. 75, those biases to be avoided are listed. It includes the following:

• Forming a global impression of a candidate, positive or negative, based on a characteristic or other information that may bias you:

• Making early judgments before your competition process has been completed; this may make you less objective during the remainder of the process.

The evidence strongly suggests that at least two of the panel members did exactly what the Guide cautions against. I am also convinced that this translated into additional marks for Ms. Legault. In numerous instances, during cross-examination, it became apparent that where Ms. Legault had provided an answer which was general or open to interpretation, it was assumed that she intended to convey the expected answer. In several instances, employer witnesses explicitly testified that Ms. Legault was credited marks because the panel member interpreted her answer to mean the correct answer. The grievor on the other hand, did not receive a similar benefit of the doubt. In many instances, her answers were interpreted to her detriment. Unless she used the exact technical term or provided specifics, she was not given credit.

Even though not a result of bad faith, I find that the scores allotted to the grievor and Ms. Legault were influenced as a result, to the detriment of the grievor. It is impossible to determine what the scores for the two would have been, had the panel not been influenced by the pre-judgment. Given the wide-spread of 21% in the scores, I am unable to conclude that but for the improper influence, the grievor’s score would have been within relative equality of Ms. Legault’s score.

Sole reliance of interview/testing

In this grievance, where the competition is between an AMAPCEO member and a non-AMAPCEO member, the governing provision is article 18.3.2. It is a relative equality provision. The Association accepted that it bore the onus of proving relative equality. There was also no dispute that in cases such as this, if the difference between the junior applicant and the senior applicant is less than by a substantial and demonstrable margin, the senior applicant is to be appointed. [Re Lady Galt Towels, (1969), 1969 CanLII 1498 (CA LA), 20 L.A.C. 382 (Christie)].

In applying article 4.3 of the OPSEU collective agreement, the Board has long established principles it expects the employer to follow in conducting a job competition. Since article 4.3 is also a “relative equality” provision, those principles also are apt with respect to article 18.3.2 of the instant collective agreement. In the often-cited decision in Re MacLellan and DeGrandis, 506/81 (Samuels), the Board summarized the standards expected in a job competition as follows, at pp. 25-26:

The jurisprudence of this Board has established various criteria by which to judge a selection process:

1. Candidates must be evaluated on all the relevant qualifications for the job as set out in the Position Specification.

2. The various methods used to assess the candidates should address their relevant qualifications insofar as is possible. For example, interview questions and evaluation forms should cover all the qualifications.

3. Irrelevant factors should not be considered.

4. All the members of a selection committee should review the personnel files of all the applicants.

5. The applicants’ supervisors should be asked for their evaluations of the applicants.

6. Information should be accumulated in a systematic way concerning all the applicants.

The evidence indicates that the grievor had been employed as a licensed Registered Nurse since 1978. From 1978 to 1987 she was employed in a hospital setting, including some charge nurse duties. She moved to the correctional setting in 1987, when she commenced as a staff nurse at the Hamilton-Wentworth Detention Centre. In 1988 she transferred to the Burtch Correctional Centre as a Staff Nurse, and remained in that position until 1996. From 1996 to 1997 she served as the Health Care Coordinator (HCC) of Burtch Correctional Centre on an acting basis, before assuming that position on a permanent basis from 1997 to 2003. In February of 2003 the grievor assumed duties as the HCC at the Brantford jail, and was in that position at the time of the job competition for the Sprucedale HCC position, which is grieved here.

It is, therefore, undisputed that at the time of the job competition under review, the grievor had occupied the identical position (identically classified also) for approximately 2½ years at the Brantford jail. Immediately previous to that, she had occupied the HCC position at the Burtch Correctional Centre for approximately 8 years, 6 years in a permanent capacity, and 2 years in an acting capacity. In other words, for over 10 years immediately preceding her participation in the instant competition, the grievor had occupied the same position she was applying for. Since her prior employment was in a different ministry, she was in effect seeking a lateral transfer through a job competition. The evidence does not disclose that the grievor had any performance, discipline or other work related problems in any of the positions she occupied. In her application, she provided the employer with the names of four individuals for purposes of references, including the Superintendent and Deputy Superintendent of the Brantford jail, to whom she reported in her capacity as HCC.

The competition process following the screening of the applications consisted of an oral interview comprising 7 questions, immediately followed by a written test requiring the candidates to provide written answers to 2 questions. The performance of the candidates in the interview and test was also assessed to score them on their communication and presentation skills.

Ms. Ferdinand, who served as the chairperson of the selection panel, was responsible for doing the reference checks for candidates. During her testimony in chief she was asked “what role, if any, did reference checks play in the selection process?” She replied: “We didn’t score references. We used references only to identify if there were any concerns about the candidates, and to support what we had seen at the interviews”. When asked whose references were checked, Ms. Ferdinand testified: “I did the references. In consultation with Human Resources, I only checked Ms. Legault’s references since the spread in the interview scores between her and the other candidates was so large, and because we were not scoring references”. She testified that Ms. Legault’s references confirmed that she had a positive work record. Ms. Ferdinand testified that right after the interviews the panel identified Ms. Legault as the successful candidate, subject only to her obtaining satisfactory references. Once the references came out positive, Ms. Legault was offered the posted position.

In cross-examination, Ms. Ferdinand testified that at the end of the interviews of the 3 candidates, the panel used a calculator to total the marks of each candidate in the 3 categories – the oral interview, the written questions and communication. Since Ms. Legault had a score of 88% as compared to the grievor's 67%, Ms. Legault was identified as the successful applicant. She confirmed that on the day of the interviews itself, the decision was made to award the position to Ms. Legault, subject only to her obtaining satisfactory references.

Ms. Ferdinand agreed that the candidates’ personnel files and performance evaluations were not reviewed by any of the panel members. Association counsel repeatedly questioned Ms. Ferdinand as to whether any consideration was given to the fact that the grievor had competently performed in the identical position for approximately 10 years. She did not answer “yes” or “no”, but stated that she went on the basis of the selection criteria provided. She reiterated that personnel files, and performance appraisals were not reviewed, and references were not checked, because she received advice from Human Resources that it was unnecessary, given the large margin in the interview/test scores.

Ms. Shaw, who was the technical expert on the selection panel, also confirmed that the successful applicant was identified as soon as the scores were tallied up following the interviews. She stated that references were used only to confirm that decision, and stated, “For example if it was disclosed in the reference check that the applicant we had selected had abused a client, we would have had a great concern about hiring her.”

During his examination of witnesses, employer counsel attempted to elicit evidence to establish two things. First, that the interview questions were designed to draw out, and did draw out, the work experience of the candidates. On that basis, counsel submitted that the candidates’ past work experience and performance was adequately assessed through the interview and testing process itself. Second, it was suggested that because of her significant experience in the OPS, and particularly in a HCC position in the OPS, the grievor would have had an advantage over Ms. Legault in answering the interview and written questions. On that basis it was argued that the grievor’s work experience would have been credited, and reflected in the scoring of the interview and testing process. It was up to the grievor to use her experience in the OPS and in the HCC position itself to her advantage. If she failed to do that, she has only herself to blame.

Conclusion

The standards expected in conducting a job competition in the OPS as described in Re MacLellan and DeGrandis have been set out supra at pp. 11-12. The evidence is overwhelming that in the present case, the decision was made, for all practical purposes, solely on the basis of the interview/testing scores. I find that there was no attempt to assess past work experience and performance in any manner, and that the interview and test questions did not permit such an assessment. Even if it did, it is not sufficient to consider the candidates’ experience and work performance through the answers provided during a brief interview/testing process, when much more extensive and reliable information is available by way of reference checks and a review of performance evaluations and personnel files.

Arbitrators have disapproved the approach adopted by the employer in this case. Referring to the decision in Re. W.C.B. and W.C.B.E.U., April 26, 2983 (Bird), arbitrator Hope in British Columbia Workers Compensation Board and Workers Compensation Board Employees’ Union, (1989) 1989 CanLII 9273 (BC LA), 4 L.A.C. (4th) 141 at p. 157 wrote:

But nothing in the decision suggests that the employer is bound to treat directly related experience as having the same weight as actual experience. We agree with the union submission that actual experience in the job classification in dispute can be seen as speaking directly to the question of an applicant’s abilities and qualifications to perform in the disputed position. In their evidence the panel members explained their approach to evaluating the experience factor by saying, in effect, that they incorporated in the factor an assessment of the quality of each applicant’s experience based upon the subjective opinions of the panel members generated in the interview itself.

In that subjective process, it was clear that eight years of actual experience in an equivalent position could have great weight or marginal weight depending on how the applicant was perceived by the panel members in the interview process. That is, actual experience was not given any weight independent of the interview process. It was weighted exclusively on the basis of how applicants were perceived by the panel members in the interview process. As with education, the employer, having isolated experience as a relative factor, was bound to weigh that factor in a manner that fairly addressed the abilities and qualifications of the applicants for the disputed position. The conclusion reached by the two panels in this dispute on the factor of experience raised a question about the suitability of the approach.

At p. 158 Mr. Hope concluded:

The result of the approach of the panel members was that they did not evaluate each applicant’s experience, they evaluated the applicant’s performance in the interview and sought to interpolate that performance as the common denominator in the experience equation. By that means, the grievor’s eight years of actual experience became equal to the limited actual experience of the two successful applicants. They were perceived as having related experience, but it was clear in the evidence that it was their performance in the interview that caused them to be placed on equal footing with the grievor.

It is significant to note that in the process disapproved by arbitrator Hope, he noted at p. 158 that “The general thrust of her evidence was that the primary appraisal tool is the interview and that the review of an applicant’s history of employment is of only peripheral significance and is used as a means of checking the score achieved in the interview process”. In contrast here, the grievor’s employment history, which would have been readily available, was not reviewed at all.

At p. 159 arbitrator Hope wrote:

It was quite clear on the evidence that the interview process suffers all of the vulnerability inherent in a first impressions approach. In this case the panel formed their entire impression of each applicant in a one-hour interview. What that process ignored in this dispute was the accumulated experience of a thirteen-year employee with eight years of experience in the job.

At p. 168 he observed:

An employee who has worked for a lengthy period of time in a classification must be seen prima-facie as having the abilities and qualifications to perform in positions falling within the classification. Where the employer seeks to discount that experience in a job competition, the onus is upon it to demonstrate that junior applicants with much less experience can be fairly assessed as possessing abilities and qualifications that are demonstrably greater than those of the grievor. Here the evidence adduced in that regard consisted primarily, if not exclusively, of the subjective opinions of panel members whose exposure to the applicants came in a one-hour interview. In short, the employer failed to establish evidence of a “discernible, material difference” between applicants around which to pivot its decision.

All of the observations made by arbitrator Hope apply in the present case. The employer determined that Ms. Legault was superior in qualifications and ability by a substantial margin over the grievor. This determination was based exclusively on the basis of the performance of the two candidates during a brief interview/testing process.

In Re University of Toronto, (1995) 1995 CanLII 18307 (ON LA), 52 L.A.C. (4th) 387 (Burkett) the grievor had been denied the position of lead-hand. Arbitrator Burkett found that the selection panel had ignored the grievor’s 17 year history of employment, including the two most recent years in a lead-hand position. In concluding that the competition process was fundamentally flawed, he wrote:

The members of the interview panel relied solely on the interview of Mr. Kyriakopoulos to conclude that he lacked both the judgment and the interpersonal skills necessary to be a lead hand caretaker working in the student residences. While the cases cited by the University stand for the proposition that these attributes can be assessed in an interview, they do not stand for the proposition that the assessment of these attributes should be restricted to performance in an interview. As arbitrator Cherniak was careful to observe in Re Fairview Home Inc. (supra):

Interviews cannot and should not be used however as a complete method of assessment. The ability to conduct oneself during an interview is only one facet of an employee’s abilities, and often it is not a particularly significant or relevant facet. So much depends unfortunately, on the ability of the interviewer to go beyond the surface impressions in the artificial atmosphere of an interview and probe deeply into the applicant’s vision and knowledge”.

The arbitrator went on to comment that the employer should have considered the work history of the two applicants a shown through their performance appraisals and should have spoken with their supervisors. Arbitrator Brandt reached essentially the same conclusion in his Roman Catholic Separate School Board award, (supra).

(Emphasis original)

In Re Greater Niagara General Hospital (1997) 1997 CanLII 25037 (ON LA), 60 L.A.C. (4th) 289 (Devlin) the selection process was based upon an examination with a weighting of 15%, and a behavior-based interview with a weighting of 85%. In upholding the grievance, arbitrator Devlin wrote as follows at pp. 305-306:

There is no question that an interview may be a useful tool in assessing applicants for a job vacancy. … Nevertheless, as pointed out by the Association, the B.B.I.[behaviour-based interview] depends largely on an applicant’s ability to recall and recount appropriate anecdotes and the applicant’s mark may vary based on the nature of the anecdote selected. Moreover, the B.B.I. process is premised on the theory that the best predictor of future performance is past behaviour in similar circumstances. This theory, therefore, would appear to support consideration of actual job performance. In any event, as noted by the Association, there are a number of awards in which it has been held that it is inappropriate for an employer to rely solely on test scores or interview results. Instead, it has been determined that a balanced assessment requires a consideration of all relevant factors, including test and interview results, on-the—job performance, related courses and performance appraisals: see, by way of example, Re Inglis Ltd. And US.W. Loc 4487 (1979), 1979 CanLII 3983 (ON LA), 22 L.A.C. (2d) 175 (O’Shea); RE Winnipeg (City) and C.U.P.E, Loc. 500 1990), 1990 CanLII 12876 (MB LA), 12 L.A.C. (4th) 231 (Freedman), and Re Fairview Home Inc. and Fairview Nurses MNU, Loc. 21 (1991) L.A.C. (4th) 223 (Cherniak).

(Emphasis added)

In Re Sudbury Regional Hospital, September 9, 2003 unreported (R.M. Brown) at p. 5 the arbitrator wrote:

The union contends the competition process was “fundamentally flawed due to the 94% weighting on the interview itself” and “this fact alone is sufficient to require a re-run of the competition.” In support of this contention, the union relies upon the following passage from Leading Cases on Arbitration by Mitchnick and Etherington:

In recent years, many arbitrators have held that undue reliance on an employee’s interview performance created a fatal flaw in the selection process. In such cases, excessive emphasis on the interview has often come at the expense of a more balanced consideration of other relevant factors, including work history, past training, performance appraisals, comments of supervisors and coworkers, and test scores. The risk of placing too much reliance on an interview is especially acute where the Grievor has had significant work experience in the employer’s establishment, since this is likely to offer a more dependable prognosis of future performance than the ability to communicate at an interview. (at 19.4.2; emphasis added)

The authors suggest jobs should be award based upon not only interview results but also past performance on the job as measured by performance appraisals and comments of supervisors. Two awards are cited as illustrative of the approach generally taken by arbitrators: University of Toronto and Canadian Union of Public Employees (1995), 1995 CanLII 18307 (ON LA), 52 L.A.C. (4th) 387 Burkett); and Greater Niagara General Hospital and Ontario Nurses’ Assoc. (1997), 1997 CanLII 25037 (ON LA), 60 L.A.C. (4th) 289 (Devlin).

At p. 10 arbitrator Brown concluded:

Turning to the case at hand, I conclude the selection process was fundamentally flawed because it was based largely upon the answers given by candidates during their interviews and paid little heed to how they had performed on the job over a period of more than twenty years. Actual performance at work entered into the selection process only via an applicant’s response to the six behaviour-based questions. Interviews in general and behaviour-based questions in particular are useful tools, but both have their limitations. As Arbitrator Cherniak commented in Fairview Home, “the ability to conduct oneself during an interview is only one facet of an employee’s abilities”. And a noted by Arbitrator Devlin in Greater Niagara General Hospital, the score awarded for answers to behaviour-based questions “depends largely on an applicant’s ability to recall and recount appropriate anecdotes.” The job performance of candidates should have been considered, along with their interview scores, because it was relevant to several of the qualifications set out in the job posting – i.e. positive work record, good organizational and interpersonal skills, ability to work independently and as a team player, and good communication skills

The Grievance Settlement Board has also disapproved undue reliance on the interview process in assessing qualifications and ability of applicants. In Re Esmail, 1186/87 (Dissanayake), the Board made the following factual findings: (pp.12.13)

Despite Employer counsel’s attempts to convince us otherwise, we are satisfied that the panel relied solely on the interview results in filling the SAC positions. Both Ms. Juda and Ms. Gibbs testified that they gave marks based solely on the answers given to the questions at the interviews and did not take into account information they were aware of but not repeated as part of the candidates’ answers. On the basis of the marking Ms. Jelley scored an average of 88/110 and the grievor 75/110. The panel concluded that the difference was significant enough not to consider anything in the resumes, employee files or performance appraisals. While two of the three panel members had read the resumes, we are satisfied that their contents were not assessed in determining the relative qualifications and ability to do the duties of a SAC. The same is true of employee files and performance evaluations. These had not been recently reviewed by any of the panel members. While Ms. Juda and Ms. Gibbs were familiar with the employees’ work, there is no evidence that that knowledge was analyzed in any way as they related to the suitability for a SAC position. As Ms. Juda put it “the scores of the two top employees were so much higher, there was no need to consider anything else”.

At p. 19-20, the Board concluded:

We have concluded that the selection panel relied solely on the interview marks in selecting the winners. This by itself is reason to strike down the competition. See Re Poole, 2508/87 (Samuels) and Re Clipperton, 2554/87 (Watters). Also, a job interview under article 4.3 must not be approached as a means of judging a performance. The purpose is not to determine who can better handle an interview. It is a process of information gathering for the purpose of ascertaining the true abilities and qualifications of the candidates.

In Re Esmail (supra) two of the panel members had reviewed the employee files and performance evaluations. However, the competition process was still found to be fundamentally flawed because that review had taken place some time earlier, and because the contents of the employee files or performance evaluations had not been analyzed as they related to the suitability for the posted position. In the present case, there is no evidence that any of the Board members had reviewed employee files or performance evaluations at any time.

I have already concluded that the interview and test questions did not permit any assessment of work experience and performance. I have further found that the grievor's experience in the positions she had held did not put her at an advantage during the interview/testing process. However, even if that was the case, this Board has held that it is insufficient. See, Re Nixon, 2418/87 (Fisher).

With respect to reference checks, in Re Bent, 1733/86 (Fisher) at p. 4, the Board observed:

The evidence is clear that the Ministry only contacted the supervisor of the successful candidate for a reference check and did not contact any other supervisor. This practice exists in spite of numerous previous Grievance Settlement Board decisions that say it is an essential part of the selection process to do a reference check on the candidates. This Ministry, however, seems to adopt the practice that they are only verifying their decision by checking with the supervisor of the successful candidate presumably to see if the reference check bears out their opinion. This again emphasizes the slavish devotion that the Ministry seems to have with respect to interview scores and its failure to understand that an interview is only part of the selection process, another part being a reference check of all the candidates who have at least obtained interviews.

In that case the Board concluded that the failure to contact the grievor’s supervisor for a reference was a defect. However, the seriousness of the defect was found to be less because the position the grievor had held previously “had very little, if anything, to do with the job for which he was applying”. Quite in contrast, the defect in the instant case is of much greater significance because for some 10 years the grievor had held the same position as the one she had applied for. Therefore, a reference check with her supervisors can be expected to provide useful and relevant insight into the grievor’s qualifications and suitability for the position she had applied for. This is so despite the fact that the grievor’s previous HCC positions were in an adult facility, while the posted HCC position was in a youth facility. The employer chose to not seek that information.

In Re Liblik/Scipnek, 2525/91 (Dissanayake) at pp. 19-20 the Board wrote:

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 many 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 be 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.

We are satisfied that the employer acted in complete good faith in conducting this competition. However, we are convinced on the evidence before us, that it gave little or no consideration to the experience and actual job performance of the candidates.

Based on the evidence in the instant case, a similar conclusion is unavoidable. The job competition carried out by the employer was fundamentally flawed and its results cannot stand. I so find, and as a result the complaint succeeds.

Remedy

It is open for this Board in the circumstances, to take one of several decisions with respect to remedy. One, which employer counsel advocated, is to award no redress beyond a declaration that the collective agreement was violated. This would be appropriate where I am in a position to determine that even if the employer had avoided the errors it had committed, the grievor would not have been able to establish relative equality to Ms. Legault. Association Counsel urged me to award the position to the grievor. This would be an appropriate response only where I can be satisfied, based on the evidence, that the grievor’s qualifications and abilities were in fact relatively equal to those of Ms. Legault.

Unfortunately, the evidence does not permit me to make either determination urged upon me by the respective counsel. Ms. Legault did not testify. Beyond having access to the application and resume she submitted, I have no information relating to her past work experience. For example, there was disagreement between the parties as to the extent of Ms. Legault’s involvement in delivering health care to patients, while occupying the various positions listed in her resume. No job descriptions of the positions held by Ms. Legault are before me. Nor are any of her performance appraisals. I am only privy to Ms. Ferdinand’s testimony that Ms. Legault’s references were positive. Similarly, with respect to the grievor, I have her testimony to the effect that she has had no performance issues raised in the positions she had held. The contents of her personnel file, particularly her performance evaluations, are not in evidence. I would have to speculate how her supervisors viewed her performance.

In urging me to award the position to the grievor, Association counsel emphasized the undisputed fact that the grievor had for many years been employed in a similar HCC position, without any concerns being raised about her performance. This evidence would establish that the grievor had the qualifications and ability to perform the HCC duties. Indeed, that was not disputed by the employer. However, the issue before me goes beyond the grievor’s qualifications and ability to perform in the posted position. In order to be in a position to award the position to the grievor, I must be satisfied that the grievor’s qualifications and ability are relatively equal to that of Ms. Legault. As noted, I lack the information with respect to both candidates that would permit me to make a decision on relative equality. The situation would have been different if the governing collective agreement provision was not one of relative equality, but one which required a posted position to be awarded to the more senior qualified applicant. Since I have evidence upon which to conclude that the grievor was qualified for the posted position, and since she was the more senior applicant, I would have awarded the position to her. However, the assessment of relative equality requires more information that what is before me.

In all of the circumstances, it is appropriate to award the same remedy awarded in Re Esmail, for the same reasons set out at pp. 21-22:

In the present case, the Employer conceded that the grievor was qualified for the SAC position. However, that concession is not determinative. To award the job to the grievor, we must satisfy ourselves that the grievor’s qualifications and abilities to perform the SAC duties are relatively equal to that of Ms. Jelley. Upon a consideration of all of the evidence before us, we are not satisfied that the information before us allows us to make that decision. For example, the employee files and performance appraisals which were not reviewed by the selection panel were not made available to this Board either. We are not persuaded that this is an appropriate case in which we should substitute our judgment for that of the Employer by awarding the SAC position to the grievor. It is more appropriate to direct a second competition subject to a number of conditions.

For all of the foregoing reasons, the Board directs that the appointment of Ms. Legault to the HCC position at Sprucedale Youth Centre be rescinded, and that the competition be re-run subject to the following conditions:

(a) The competition shall be restricted to the grievor and Ms. Legault. Should Ms. Legault elect not to participate or decline the position, the grievor shall be awarded the position.

(b) The competition process shall be commenced no later than 30 calendar days from the date of issuance of this decision, subject to extension only by mutual agreement between the employer and the Association.

(c) The selection panel shall not take into account the experience, knowledge and ability Ms. Legault may have acquired since her appointment following the initial competition in 2005, or her performance in the position since that appointment.

(d) The selection panel shall have regard to the criteria for a proper selection process set out by this Board in Re MacLellan and DeGrandis, set out supra at pp. 11-12. In particular, the selection panel shall review the personnel files, including the performance appraisals if any, of the two employees.

In summary, the complaint is allowed. I retain jurisdiction to deal with any disputes that may be encountered in the implementation of this decision, and with any remedial issues that remain following the conclusion of the competition conducted pursuant to this decision.

Dated this 4th day of July 2008 at Toronto, Ontario.