Award Number 97-002

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Award Date:	1996-12-31
Arbitrator:	Picher, M. View awards by Picher, M.
Municipality:	Metro Toronto View awards from Metro Toronto
Region:	Central View awards from Central
Classifications:	Skill and Ability, Seniority, Promotion, Seniority
Grievor:	E. de Silva
Appearances:	J. Monger, for the Association C. Kay-Aggio and others, for the Employer
Length of Award:	36 pp
Collective Agreements Cit.	Art. 16, 4
Statutory Cit.

Summary

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Skill and Ability   Factors - Tests - Civilian members - Relative equality clause - Written test and interview - Grievor unfairly deprived of marks - Grievor relatively equal - Award of position - Grievance allowed.

Seniority   Use of seniority - Civilian members - Relative equality clause - Expectation that highest scorer would be successful candidate - Employer improperly applying standard - Grievance allowed.

Promotion   Arbitral review - Civilian members - Competitive seniority clause - Usual arbitral deference to management’s decision - Appropriate to examine correctness of conclusion where scoring system flawed. - Grievance allowed.

Seniority   Civilian members - Relative equality clause - Open-ended and subjective scoring system - Point differential insufficient to indicate grievor not relatively equal to successful candidate - Grievance allowed.

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Facts

The grievor alleged he had been improperly denied promotion to the position of Supervisor - Freedom of Information, contrary to Art. 16.02 of the collective agreement. The grievor, who was senior to the successful candidate, had experience as Vice-President of the Association and at the time of the job call he was serving as the Chief's community liason officer. The successful candidate was Administrative Co-ordinator of 52 Division at the time of the job call. Both candidates had budgetary experience - the grievor, in his capacity as Vice-President of the Association and prior experience as the person in charge of payroll for the force.

The competition was governed by Art. 16.02 of the collective agreement, which provided for selection on the basis of skill, ability and efficiency, with seniority to prevail where those factors were relatively equal.

Candidates were administered a written test, which was marked by the Unit Co-ordinator, Staff Sgt. R. Desjardins. Candidates were also interviewed by a three-person panel consisting of Staff Sgt. Desjardins and two others. Among other factors, job related experience was part of the assessment. The grievor scored a total of 81.3 points. The successful candidate scored 85.5.

Argument

The Association argued that the grievor was relatively equal to the successful candidate. The Association submitted that the grievor should have received higher marks on several measures, including education and experience. Counsel argued that flaws in the entire selection procedure - the written test, the interview and evaluation of education and experience - warranted overturning the panel's decision. Further, the Association maintained that the grievor had been discriminated against on the basis of his involvement with the Association. In that regard evidence was led concerning remarks the Staff Sergeant was said to have made to one of the unsuccessful applicants.

The Employer contended that the point differential between the grievor and the incumbent was justified and was more than sufficient to demonstrate that they weren't relatively equal. The Employer led evidence countering the Association's suggestion that the grievor's status with the Association had been held against him.

Award #

The Arbitrator found that there had been no discrimination on the basis of the grievor's involvement with the Association. The Association witness's testimony to the contrary was found to be unreliable and generally not credible.

On the merits the Arbitrator agreed with the Association's argument that the selection process was fatally flawed. Staff Sgt. Desjardins marked the grievor substantially lower than did his co-panelists. Important areas of the grievor's prior experience were ignored, such as his liason work in community and race relations, his budgetary experience and his experience as acting paymaster. Proper credit for these areas would have resulted in a score equal to or better than that of the successful candidate.

The point differential was based on an open-ended and subjective scoring system. The panel's suggestion that a difference of 2/10's or 3/10's of a mark indicated relative equality was thus not tenable. More fundamentally, the panel erred in their expectation that the candidate with the highest score should win; Art. 16.02 required relative equality between two or more candidates.

The grievor had been unfairly deprived of marks. The Arbitrator was satisfied that the grievor was in fact relatively equal to the successful candidate. He awarded the position to the grievor with compensation and interest.

Grievance allowed.

Authorities Cited

* Re Indusmin Ltd. (1978), 20 L.A.C. (2d) 87 (M.G. Picher)
* Re Province of Alberta (1994), 51 L.A.C. (4th) 397 (McFetridge)
* Re Embassy Suites Hotel (1995), 48 L.A.C. (4th) 150 (Knopf)
* 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)
* Re British Leaf Tobacco Co. of Canada Ltd. and Canadian Union of Operating Engineers & General Workers (1981), 3 L.A.C. (3d) 235 (Kennedy)
* Re The Tribune (Div. of Cariboo Press Ltd.) and Communication Workers of America, lcoal 226 (1989), 4 L.A.C. (4th) 390 (Chertkow)
* Re Religious Hospitallers of St. Joseph of Hotel Dieu (Kingston) and O.P.S.E.U., local 465 (1994), 43 L.A.C. (4th) 155 (Simmons)
* Re Public Utilities Commission of City of Sault Ste. Marie C.U.P.E., local 3 (1994), 44 L.A.C. (4th) 286 (Hinnegan)
* Re British Columbia Rapid Transit Co. Ltd. and Independent Canadian Transit Union, local 7 (Aug. 5, 1992) unreported (Larson)
* Re Health Sciences Centre and Manitoba Association of Health Care Professionals (Feb. 24, 1993), unreported (Hamilton)
* Re Toronto Hydro-electric System and C.U.P.E., local 1 (Dec. 20, 1993), unreported (Solomatenko)
* Re St. Joseph's Health Centre of London and Ontario Nurses' Association (July 18, 1988), unreported (Welling)
* Re Wellesley Hospital and Ontario Nurses' Association (1989), 5 L.A.C. (4th) 55 (Weatherill)
* Re Cornwall Police Association and Board of Commissioners of Police for the City of Cornwall (Oct. 22, 1991), unreported (Thorne)
* Re The Crown in right of Ontario (Ministry of Health) and Lethbridge (July 9, 1981), unreported (GSB - Barton)
* Re The Crown in right of Ontario (Ministry of Government Services) and O.P.S.E.U. (Worsley) (March 4, 1982) unreported (GSB - Draper)
* Re The Crown in right of Ontario (Ministry of Transportation and Communications) and O.P.S.E.U. (Bullen) (Aug. 3, 1982), unreported (GSB - Samuels)
* Re The Crown in right of Ontario (Ministry of Health) and O.P.S.E.U. (Savarimuthu) (Feb. 6, 1992), unreported (GSB - Disanayake).

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