GSB#2015-1216

UNION#2015-0499-0054

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Ly)

Union

• and -

The Crown in Right of Ontario (Liquor Control Board of Ontario)

Employer

BEFORE

Brian P. Sheehan

Arbitrator

FOR THE UNION

Brodie MacRae Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Erin Charbonneau Liquor Control Board of Ontario HR Manager

HEARING

September 6, 2017

Decision

1The Employer and the Union at the Liquor Control Board of Ontario, Eastern Regional Office, Nepean, agreed to participate in the Expedited Mediation/Arbitration process in accordance with the negotiated Protocol. It is not necessary to reproduce the entire Protocol. Suffice to say, that the parties have agreed to a True Mediation/Arbitration process wherein each party provides the Arbitrator with their submissions setting out the facts and the authorities they respectively will rely upon. This decision is issued in accordance with Appendix 2 – Memorandum of Agreement of the collective agreement; and it is without prejudice or precedent.

2On February 2, 2015, the Employer posted a job competition (E.R. 018) for a Product Consultant-Ottawa Area West position. The grievor submitted a Retail Store Posting Application Form and his resume, with respect to that job competition.

3The Employer’s selection process, with respect to a job competition for a Product Consultant position, involves multi-tiered screening. In the first step of the process, an applicant’s resume is reviewed by a centralized panel that assesses, based on the resume, whether the applicant meets the minimum requirements for the position. In the next step of the process, based on seniority, a certain number of those applicants who meet the threshold advance to the next stages of the competition; which involves an interview and organoleptic testing. In this regard, with respect to the E.R. 018 Product Consultant job competition, eight employees successfully passed the resume screening stage; with the three most senior of those employees moving on to the next stages of the process.

4On March 30, 2015, Neil Lenihan, Selection Panel Chairperson, informed the grievor, in writing, that he was not being considered for the job competition in question. Specifically, Mr. Lenihan advised the grievor:

Unfortunately, based on the resume that you submitted, the selection panel was unable to establish that you have the minimum requirements to proceed through the process.

I would like to draw your attention to the position posting which states:

“…. Your résumé should outline your relevant experience working in a Vintages section, experience managing a section of a store (i.e. vodkas or beers), your experience in product selection, and any experience you have in teaching, coaching or training….”

5The relevant wording of the collective agreement (Article 22.5) stipulates that the position will be awarded to the senior applicant, provided the employee is qualified to perform the work. In the case at hand, an employee with less seniority than the grievor was ultimately awarded the position.

6During the Stage 2 grievance meeting, the Employer identified a number of shortcomings with respect to the grievor’s resume, and suggested certain ways that his resume could be improved.

7In November 2015, there was another job competition for a Product Consultant position. The grievor applied for that position with a revised resume. Not only did the grievor successfully advance past the resume screening stage, but after completing the interview and the organoleptic testing, he was awarded that particular Product Consultant position.

Submissions of the Parties

8The Union asserted that with respect to the Product Consultant job competition in question, it is clear that the grievor was qualified to perform the work of that position; and the definitive proof demonstrating that he was, in fact, qualified is that he was awarded the exact same position some six months later; without any substantive change in his qualifications or with respect to the contents of his resume.

9With respect to the grievor’s resume, the Union did not dispute that his revised resume was indisputably better formatted. It was submitted, however, that there was no difference in the substantive content of the two resumes. Further to this point, it was emphasized that a fair review of the resume submitted by the grievor, with respect to the job competition in dispute, clearly establishes that the grievor, at a minimum, possessed the minimum requirements for the position.

10The Union also noted that the grievance was filed before the successful candidate actually commenced working in the position. Accordingly, the Employer could have easily corrected its error and awarded the position to the grievor; thereby, avoiding any liability owing to the grievor.

11For the Employer, it was important to recognize that given the size of the bargaining unit, there are often a significant number of applicants with respect to any Product Consultant posting. Accordingly, the Employer utilizes a centralized screening process to eliminate, from further consideration, those candidates whose resumes suggest that they do not meet the minimum requirements of the position. Further to this point, it was submitted that it is incumbent upon an applicant to provide a sufficiently satisfactory and fulsome resume; and that, the Employer should not be required to track down an applicant to fill in the gaps, or seek further details regarding the applicant’s qualifications.

12The Employer further submitted that a review of the resumes of those applicants that passed the resume screening stage with respect to the job competition in question, clearly demonstrates what was required, in terms of the required qualifications; and moreover, highlights the comparative deficiencies of the grievor’s resume.

13Related to the above point, it was also suggested an important aspect of the Product Consultant’s position is to be able to present oneself as an effective communicator, in terms of effectively and professionally communicating with the public. Accordingly, as much as it would have been the expectation at the interview stage, it was also the responsibility of the applicant at the resume stage to “make his/her case”, and thoroughly demonstrate by way of his/her submitted resume that he/she was clearly qualified for the position. The Employer emphasized that the shortcomings with respect to the grievor’s resume were not limited to being stylistic in nature; nor was it simply an issue of poor formatting. Specifically, it was asserted that the grievor’s resume fundamentally failed to address some of the key requirements for the Product Consultant position, as laid out in the job posting.

Decision

14No issue is taken with the overall process the Employer has adopted with respect to the Product Consultant job competitions. It is more than reasonable for the Employer to do an initial screening of the resumes of the candidates, and to eliminate from further consideration, those candidates who fail to satisfy the minimum requirements/qualifications for the position. Moreover, it is, arguably, not realistic at that stage in the process, for the Employer to be obligated to contact an applicant to seek supplemental information; as this could potentially give rise to a claim of “unfairness”, if the Employer followed that course of action with respect to certain of the applicants and not others. Accordingly, there is much to be said for the perspective that the resume should “speak for itself”; and that, the onus should rest with an applicant to ensure that the submitted resume clearly identifies and connects his/her qualifications to the stated requirements of the job as set out in the job posting.

15At the same time, the potential significance of such job competitions for members of the bargaining unit cannot, arguably, be overstated. For an employee, a promotion and/or a transfer to a posted position may be of the utmost importance, in terms of an increase in wages, better working conditions, and/or career advancement and fulfillment. It is, therefore, incumbent upon the Employer, at the resume screening stage, to ensure that it fairly and thoroughly assesses a particular applicant’s resume to determine whether it demonstrates that the applicant meets the threshold of establishing the minimum requirements for the position. The collective agreement clearly provides that the senior employee is entitled to be awarded the position, provided if he/she is qualified to perform the work. The review, therefore, must be focused on the sufficiency of a particular candidate’s resume, in terms of satisfying the relevant minimum threshold; as opposed to how it “stacks up” on a comparative basis to the resumes of other applicants.

16In the case at hand, it is my determination that the Employer erred, with respect to its assessment of the sufficiency of the grievor’s submitted resume. There is no doubt that his resume was poorly formatted. That being said, a review of his resume establishes that the grievor did meet the minimum qualifications for the Product Consultant position, in accordance with the requirements for the position as set out in the job posting. In this regard, the following excerpts from the grievor’s resume are set out against the four relevant areas of experience that the grievor’s resume purportedly failed to sufficiently address as were identified in Mr. Lenihan’s March 30, 2015 letter: Experience Working in Vintages; Experience in Product Selection; Experience Managing a Section of a Store; Experience in Teaching, Coaching or Training:

Consistently assist customers in making selections from the Vintages section with confidence and clarity, leading to a relationship of trust for future product recommendations.

Currently assist Product Consultant with receiving and displaying of Vintages releases, as well as customer recommendations at a flagship store with close to 1000 Vintage products.

Possession of acute palate sensitivity through training in various external beverage alcohol courses such as Wine Spirit Education Trust and the French Wine Society.

Have previously managed the beer section of a store, which had over 40% of its unit sales in that category. Responsibilities included listing, delisting, ordering, stocking and working with trade representatives to maintain adequate levels of stock

Have previously managed the Spirits section of a store. Including listing, delisting, identifying slow-moving products for markdown and working with trade representatives.

Capable and effective leader/trainer/coach as demonstrated by leading shifts several times a week for the past six years, delegating tasks to colleagues effectively and without incident. As well as being twice elected President of a trade union local, representing over 700 employees

Have previously assisted in making the weekly schedule; assisted in developing new loss prevention strategies; assisted in de-escalating/resolving workplace conflicts

17In fact, the only significant difference, in terms of content between the resume in dispute and the revised resume the grievor submitted for the November 2015 Job Posting, is that his revised resume identifies the time frames in which he performed certain relevant work or functions (i.e. acted in a capacity of Product Consultant for 6 months). No doubt the absence of the identification of the time spent doing an identified activity, or the duration of a particular work experience is a legitimate criticism of the resume in dispute. It is noteworthy, however, that there was no express indication in the posting that the employee had to possess experience in the identified areas for a specific period of time; nor was there a general declaration that an applicant should specify how long he/she performed a particular function. Arguably, of more importance, the relevant question at the resume screening stage, is whether the resume indicates that the applicant meets the threshold of having the “minimum requirements” associated with the position. Accordingly, while I understand and appreciate the Employer’s critique of the shortcomings of the resume, it is my determination that the Employer erred when it concluded the resume did not establish that the grievor possessed the minimum requirements for the Product Consultant job in question. By not properly and fairly assessing the grievor’s resume and not allowing him to proceed forward in the job competition, the Employer breached the collective agreement.

18Turning to the issue as to the appropriate remedy, as the Employer suggested, there is no absolute guarantee that the grievor would have necessarily been successful with respect to the interview and the organoleptic testing, even if he had proceeded forward in the job competition. Yet, not some six months later, after the grievor had the opportunity to be interviewed and to undertake the organoleptic testing, the Employer confirmed that he was, in fact, qualified for a Product Consultant position. The grievor’s claim for damages is, therefore, in my view, not too speculative in nature; as it is more than reasonable to assume that, had he had the opportunity to progress beyond the resume screening stage with respect to the job competition (E.R. 018), he would have been deemed qualified. The grievor is, therefore, entitled to be made whole with respect to the losses incurred; accordingly, he is to be compensated for any lost wages and benefits, and to receive the appropriate adjustment in time served in the position for wage grid purposes related to not being awarded the Product Consultant position in question. I remained seized with respect to any dispute regarding the implementation of this remedy.