Award Number 94-023

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Award Date:	1994-12-06
Arbitrator:	Jackson, R. View awards by Jackson, R.
Municipality:	Haldimand-Norfolk View awards from Haldimand-Norfolk
Region:	South West View awards from South West
Classifications:	Seniority, Job Posting, Skill and Ability, Remedies
Grievor:	K. McDonnell
Appearances:	P. Osier and others, for the Association G. Sheppard and others, for the Employer
Length of Award:	13 pp
Collective Agreements Cit.	Art. 3.06
Statutory Cit.

Summary

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Seniority   Use of seniority - Civilian members - Job posting - Competitive seniority clause - Not demonstrated that successful junior candidate superior by substantial margin - Grievance allowed.

Job Posting   Selection procedure - Exclusive reliance on testing - Other stipulated criteria not considered - Selection procedure flawed - Grievance allowed.

Skill and Ability   Factors - Tests - Inconsistent administration of test - Exclusive reliance on tests improper - Selection procedure flawed - Grievance allowed.

Remedies   Job posting - Flawed competition - Grievor senior employee and relatively equal to junior candidate on relevant measures - rerun of competition not appropriate - Award of position - Grievance allowed.

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Facts

The grievor was the most senior of 6 candidates for the job posting of Clerk-Typist III. The grievor had been working as a Clerk-Typist I but wanted the lower rated job because it was straight day work.

The successful candidate was considerably junior to the grievor.

Article 3.06 of the civilian agreement stipulated that in job postings candidates would be evaluated on the factors of "knowledge, efficiency and ability to perform the work"; where these were "substantially equal", seniority would govern.

In making its selection management relied exclusively on the results of English and typing tests. The grievor scored 70.2% on the English test, compared to the successful candidate's score of 85.5%. The uncontradicted evidence regarding that differential was that the grievor misread the instructions on one part of the test and as a result lost 25 marks. On the typing test the grievor's net speed was better than the successful candidate's: 58.2 wpm versus 52.8 wpm. However, the successful candidate's score had been adjusted upward to allow for a "nervousness" factor, so that her adjusted score became 67.5 wpm.

The grievor was required to take the English test one day after her return to work from maternity leave. The typing test was administered on her fourth day back.

In evidence the Civilian Administrator of the force acknowledged that in terms of ability he believed the two employees were substantially equal, and that in the "old days", prior to the instituting of formal testing, the grievor would have gotten the job.

Argument

The Association's position was that the selection procedure was flawed in a number of respects: in terms of how the tests were administered, scored, and the weight accorded to the tests. The grievor was in fact equal to the successful candidate, and should be given the job.

The Board's position was that the successful candidate's scores were significantly higher than the grievor's on the two equally weighted tests. This indicated a substantial margin of superiority. Alternatively, if the procedure were found to be flawed, the appropriate remedy was to remit the matter to the Board for a fresh competition.

Award #

The selection procedure was flawed on several levels. Other indicators of ability were ignored, such as performance evaluations, supervisors' references, etc. The criteria stipulated in Art. 3.06 simply hadn't been applied: knowlege, efficiency and ability. Instead exclusive reliance had been placed on the tests, the administration of which had been flawed, in the sense that the successful candidate's net typing score was adjusted upward, affording her a major advantage. Arbitral jurisprudence holds that if tests are to be used as measures of skill and ability then they must be consistent and fair. Furthermore, the grievor had been required to write the tests at a time which may have disadvantaged her, and had misread instructions. Taken together, the results of the tests did not indicate a substantial margin of superiority in favour of the junior employee.

The two candidates' supervisor had admitted that they were relatively equal in ability. And other evidence bore that out: the grievor's positive performance record, clean disciplinary record, her knowledge and experience on the job. The Arbitrator concluded that the grievor was substantially equal. In view of that finding, running a fresh competition was unnecessary and inappropriate. He directed that the grievor be placed in the position, and allowed the grievance.

Authorities Cited

* Re Great Atlantic and Pacific Co. of Canada Ltd. and Canadian Food and Allied Workers' Union, locals 175 and 633 (1979), 21 L.A.C. (2d) 444 (Weatherill).

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