Case Name:
Simon Fraser University v.
Teaching Support Staff Union

IN THE MATTER OF the Labour Relations Code
of British Columbia
AND IN THE MATTER OF an Expedited Arbitration
Between
Simon Fraser University, the Employer or University,
and
Teaching Support Staff Union, the union

[2003] B.C.C.A.A.A. No. 136
Award No. X-028/03

British Columbia
Collective Agreement Arbitration
R.K. McDonald, Arbitrator

Heard: (Burnaby, B.C.) February 13 & 14 and
April 29 & 30, 2003.
Award: May 15, 2003.
(48 paras.)

Appearances:

Patrick Gilligan-Hackett, for the employer.
(V.R.) Sam Black, for the union.


EXPEDITED AWARD

 1      My appointment as a single arbitrator pursuant to Section 104 of the Labour Relations Code is in respect to a selection grievance raised on behalf of Dwight Gordon Gardiner ("the Grievor"). In response to a Position Announcement in late 2001, the Grievor applied to teach a number of courses in the Department of Linguistics, including two sessions of LING 220 (Introduction to Linguistics). As the Grievor was denied both sessional appointments, he grieved claiming a violation of the Collective Agreement. In her opening address, Ms. Black submitted that the Grievor met the requirements for the appointments and was at least equal to the successful candidates. The Union therefore sought a declaration as to the violation of Article XIV.E.3 of the Collective Agreement, an order for compliance, and an order for compensation with Court Order Interest. Mr. Gilligan-Hackett submitted that there had been no violation of the Collective Agreement, as the University had exercised a discretion or judgment under Article XIV.E.3 in determining that the successful candidates had "better qualifications or abilities" (emphasis added) for a critical course that served as a gateway to higher level studies in the Linguistics Department.

 2      The applicable provisions of the Collective Agreement are as follows:

Article XIV: Sessional Instructors

A.

Definitions


1.

A Sessional Instructor is a bargaining unit employee who is appointed for a semester to teach a credit course. The appointment to teach a credit course normally requires some or all of the preparation of the course, the major responsibility for the presentation of course material, consultation with students and the assignment of grades.

2.

Part-time and full-time Faculty (and visiting and limited term Faculty) holding the rank of Lecturer, Instructor, Assistant Professor, Associate Professor, or Professor are not Sessional Instructors. Persons who are employed full-time by the University outside the bargaining unit and who are, in addition, appointed to teach are not Sessional Instructors.


B.

Qualifications


A Sessional Instructor shall hold a graduate degree or equivalent qualification in the field of her/his assignment. She/he shall also provide evidence of teaching ability commensurate with the responsibility of teaching the assigned credit course and of carrying out the duties related to the effective conduct of that course.

       ...

E.

Employment Priority and Right of First Refusal


1.

A Sessional Instructor may be appointed only when no faculty member is available to undertake the teaching responsibilities.

2.

Except as modified below, all Sessional Instructors should be hired on the basis of written applications and open competitions, and the University shall have the sole right to determine which candidate, if any, shall be appointed.

3.

Unless there is a candidate who in the opinion of the department has better qualifications or abilities, or there is a Sessional Instructor with a right of first refusal, priority will be given to the individual who has, to the satisfaction of the department, taught the identical course for a minimum of two (2) semesters and where the last appointment has occurred within the last three (3) semesters.

4.

If a Sessional Instructor has worked as a Sessional Instructor for either three (3) consecutive semesters or for a fifth (5) semester within three (3) years, and the Sessional Instructor has taught the identical course three (3) times within the previous nine (9) semesters, and has demonstrated satisfactory performance of assigned duties, then where that course is to be taught by a Sessional Instructor, she/he will have the right of first refusal in the teaching of that course.


Factors to be taken into account in determining an identical course are the calendar description, the program in which the course is offered, and the medium of course delivery. The course number will not be a relevant factor.

       ...

F.

Term of Appointment


1.

The term of appointment of a Sessional Instructor shall normally be four (4) months less a day or in Intersession or Summer Session, two (2) months.


...

Article XVI: Position Posting and Offers of Employment

At least six (6) weeks prior to the commencement of the semester, the successful applicants shall receive written notification of the employment offer and whether or not the offer is conditional upon enrollment. (Reference Article XVII: Conditional Upon Enrollment). Departments shall make reasonable efforts to determine and include in the employment offer the number of base units, or contact hours for Sessional Instructors.

The written contract of employment shall be provided to the successful applicant not later than one week prior to the semester.

...

Article XVIII: Employment Evaluation


A.

An employee must be evaluated at least once during any semester in which she/he is employed. The evaluative criteria shall be made clear to the employee upon commencement of duties.

B.

Except in cases of gross misconduct related to the employee's suitability for employment, evaluation must be made only on the employee's qualifications and performance of assigned duties and responsibilities.

C.

Evaluation may include assessment of the employee's performance by the students assigned to the employee, but decisions not to reappoint an employee cannot be based exclusively on student evaluations. Each employee shall be assessed on an individual assessment form. The employee has a right to an assessment by the person to whom the employee is responsible and/or such other person(s) as may be designated by the Chair. The request for an evaluation must be sent in writing to the Chair, in a timely manner.

D.

Each department shall prepare student assessment forms suited to its own use, with the consultation of the department Shop Steward, or other Union Representative. A copy of the form must be forwarded to the Union Office.

E.

The purpose and importance of student assessments must be stated explicitly on the form.

F.

There shall be no alteration of the employee's completed student assessment forms or the summary prepared therefrom, by any persons granted access to them.

G.

Access to all original student assessment forms and all summaries of those forms shall be guaranteed to each person evaluated therein. The original completed forms shall be withheld from the person evaluated only until submission of final grades is completed. Any student assessment form received after final grades are approved by the Department will be disregarded and destroyed. Access to original student assessment forms shall be available to the individual for a period of three (3) semesters following the semester in which the assessment was made.

H.

A copy of the department's evaluation shall be forwarded to the person evaluated by the end of the first week of classes of the following semester. The evaluation shall not normally be considered part of the file until she/he has had reasonable opportunity to discuss the evaluation with her/his supervisor and add comments to the file. This shall not preclude the use of the evaluation for rehiring in the semester immediately following the evaluation.

I.

Whenever reasonably possible, supervisors shall bring serious or continuing problems to an employee's attention. If not resolved to the supervisor's satisfaction it should again be brought to the employee's attention in writing, before formally citing such problems in evaluations, or using them in any proceedings against the employee.

J.

The design, administration and interpretation of such evaluations falls within the area of management's rights and responsibilities. Such rights and responsibilities will be exercised in a fair and reasonable manner.

               ...

Article XIX: Employment File

A.

An employment file shall be kept for each bargaining unit employee. This file shall include the departmental copy of the normal appointment document(s), a current curriculum vitae if available, and copies of such student or faculty evaluations of the employee's work performance as are normally maintained by the department.


...


F.

The contents of the employment file shall be among the matters considered in semester appointment and semester course assignment of bargaining unit employees.


G. 1.

The University shall inform an employee in writing of any written reports which express dissatisfaction with the employee's work performance or work-related conduct.

 3      The Grievor testified on his own behalf. He is 54 years of age, married with 3 children. He identified a curriculum vitae ("CV") which he prepared in 1998, that was before the Selection Committee. He has prepared a more recent one. He has a B.A., M.A., and Ph.D. in Linguistics, all of which are from the University. He has taught at the University since 1985 as a Sessional Instructor in over 20 different courses in Linguistics. Sessional Instructors are engaged by contract to teach particular courses for a single semester. Limited Term Instructors and Lecturers are Faculty positions. The majority of his courses have been taught in Kamloops, B.C., as his major field of study has been in relation to the Shuswap Salish language. He is a co-author of 2 or more papers concerning the Shuswap. His last Limited Term (Instructor) appointment was for 1994-1995. In more recent times, as a Sessional Instructor, he has taught LING 220 as follows: two courses in the summer of 1998, two courses in the spring of 2000, one course in the summer of 2000, two courses in the spring of 2001, one course in the summer of 2001, one course in the fall of 2001, and one course in the spring of 2002. The appointments for the fall of 2001 and spring of 2002 were on the basis of a right of first refusal under the Collective Agreement. He has taught LING 220 about 25 times since 1981. He described the duties and functions of a Sessional Instructor which, generally, are the same as Faculty members. As to LING 220, he described it as an introduction to the "core area", or foundation to the study of linguistics. It is a prerequisite for 3rd and 4th level courses. In his estimation, the course content for LING 220 has not changed appreciably since 1986, save for the introduction of new textbooks. As to his connection to and research in the Shuswap language, he considered that it would have more of a bearing on courses other than LING 220.

 4      The Linguistics Department issued a Position Announcement in late 2001, as follows:

Applications are being accepted for four month sessional instructorships in a number of courses beginning on May 6, 2002, subject to satisfactory enrollment in each course. Appointees will be required to teach three hours per week in each course, and will include full responsibility for classroom instruction, grading, and related duties. Supervision of teaching assistants may be required in some courses. The stipend for each course is S4837.

Appointments are available to teach courses in the following areas:


LING 100-3 Communication and Language (Evening at Harbour Centre)

LING 110-3 The Wonder of Words (Evening at Harbour Centre)

LING 220-3 Introduction to Linguistics (Day on Campus)

LING 220-3 Introduction to Linguistics (Evening at Harbour Centre)

LING 222-3 Introduction to Syntax (Day on Campus)


A Ph.D. or ABD in Linguistics is the preferred qualification for these positions. Candidates should have university teaching experience in areas for which they apply. Applicants should specify the areas in which they are qualified as well as for the number of courses they will consider teaching.

Send a letter of application and curriculum vitae by February 19, 2002 to:

Dr. Zita McRobbie, Chair

...

 5      By letter dated February 17, 2002, the Grievor sent the following application to Dr. McRobbie:

I wish to apply for a package of sessional instructorships for the Summer Semester, 2002. I am qualified to teach the following courses, listed in order of preference:


LING 220-3 Introduction to Linguistics (Evening at Harbour Centre)

LING 110-3 The Wonder of Words (Evening at Harbour Centre)

LING 220-3 Introduction to Linguistics (Day on Campus)

LING 222-3 Introduction to Syntax (Day on Campus)

I am willing to teach 4 courses.


Please note that while I am in closed competition for L110 (Day), I may have a potential timetable conflict and would prefer to be considered for the above four courses.

My CV is on file in the department.

Thank you for your attention.

 6      With respect to the L110 (Day) course, he had a right of first refusal with another person. On two occasions, he spoke to Dr. McRobbie about the timetable conflict mentioned in his application. On March 15, 2002, he received a letter from Dr. McRobbie, as follows:

Thank you for your application to teach in the Linguistics Department this upcoming semester.

I am pleased to recommend to the Dean of Arts that you be appointed to teach LING 110 (Day on Campus) May - August 2002. You will be assigned 3 contact hours, excluding office hours. The stipend will be $4837.00 for the period under the present Teaching Support Staff Union Contract. ...

 7      On April 1, 2002, the Grievor sent an e-mail to Dr. McRobbie stating:

This is to confirm that I am unable to teach LING 110 Day, due to a scheduling conflict.

 8      In terms of other professional contact with Dr. McRobbie, as a Faculty member she had offered to oversee his written development of LING 220 for Distance Education. Her role was to work with him, on a collegial level, to determine the appropriate content of the project. He did not think that the collaboration went well at all. He found that she was taking a "supervisor to graduate" approach, that she was "less receptive" to his proposals, trivial and somewhat defensive. In his view, the time spent to prepare the document was not unreasonable. By "defensive" he meant impatient and that she was uncomfortable working with him on the project. Although there was no conflict in terms of changes, her manner was insistent and the matter was not open for discussion. He signed the contract for Distance Education in 1998. In late 2002, it was determined that he had taken too long to complete the project and a deadline of January 31, 2003 was imposed. Early in their meetings in the spring of 2000, Dr. McRobbie's impatience was evident as she said things like "I don't have time for this" and "I'm not being paid for this". They were having difficulties in communicating with each other and in September 2000, she recommended that others be involved. In the spring of 2002, he spoke to Dr. McRobbie as to why he had not been offered the opportunity to teach LING 222. She stated that the person selected had superior evaluations in the course and had a scholarly linguistics publication. He wondered, to himself, whether "people were looking at my CV." To the best of his knowledge, Dr. McRobbie had never appointed him to a Sessional Instructor position other than on a right of first refusal, save for a course in LING 408 in the summer of 2002 following a grievance. Under the Collective Agreement, a Sessional Instructor may be evaluated by students. No one in the Linguistics Department, be it a Chair or Acting Chair, had ever discussed his evaluations or dissatisfaction with his performance. He was not aware of any evaluations of the Department. He had not seen, until recently, an apparent performance review for himself of about 1993. He identified an e-mail of July 3, 1998 from an Associate Professor, Paul McFetridge, to the Chair of the Department, that recommended him for a Limited Term Lecturer position, a Faculty appointment. He subsequently did receive that appointment. Under cross-examination, the Grievor testified that in 1999, the Chair of the Department, Paul McFetridge, had spoken to him about a course in LING 221 where several students had lodged a complaint concerning his teaching. He was shown the written complaint. He agreed that the University relied on student evaluations as a method for course evaluations. He stated that they were provided systematically and he does read them. He was not aware of an average rating in all the Faculty. Comments could be positive or negative. There had been a criticism of him in terms of lack of organization in courses. He accepted that his teaching could be improved. There are courses available to him that foster improved teaching. He had not enrolled in any such course. According to his 1998 CV, his doctorate was completed in 1993. Since then, he had published one paper in 1996 and one paper in 1998. He did not understand that in the academic world, little weight is given to publication "to appear". He did not have a letter from UBC indicating a firm offer to publish "Secwepemc Syntax". UBC first made a commitment in late 1997 or early 1998, however, no book has been published to date. In his 2002 CV, his list of publications remained unaltered. In the 9 years following the completion of his Ph.D., he had two publications, plus one which he had co-authored. When asked whether he was aware of the expression "publish or perish", he said "Yes I am ... for tenure track positions". The co-authored work was in the nature of a report to the Kamloops Indian Band. The reference in his 1998 CV to 1998 Secwepemc Online was not to an academic conference, but to the use of technology in education as a practical exercise. His last conference was in 1996. He identified the Distance Education Course Development Contract which he had signed in 1998, with a deadline of April 30, 1999. His obligation was to produce a substantial study guide, and he would be paid $6,000.00. There was an extended deadline imposed of January 31, 2003. At the time of preparing his 2002 CV, he had not completed the project. As to feedback on the project, he had received general comments from other Faculty members. He had gone through the material extensively with Dr. McRobbie who had neither expressed satisfaction nor dissatisfaction with the work. Dr. Heift had definitely expressed some concerns. He felt that the time he had spent with Dr. McRobbie in reviewing the material was appropriate. It was evident that she had read the material. In terms of his letters of reference, the most recent was about 3 1/2 years ago. He was familiar with his history of appointments to LING 220. The right of first refusal first came into play in 1999. Prior to then, there was a competition. He has continued to have a right of first refusal. In a position application, one is not told of the other candidates. With his application in February 2002, he was offered LING 110, where he had a right of first refusal in a closed competition. That meant that any other candidates also had a right of first refusal. He did not withdraw his application for LING 110. He agreed that he was the successful applicant and that appointment was made by Dr. McRobbie. The competition for LING 220 was an open one, as it was posted. He would have been notified by e-mail if it had been closed. He had no idea whether there would be other candidates for LING 220. He did not know of the other candidates. Dr. McRobbie is not a native speaker of English, as she is Hungarian. She has an accent. Her manner can be brusque. He did not know whether her personality was excitable. Aside from the Distance Education project, his contact with her was limited. As to Dr. Murray Munro, he had some professional contact, but no direct dealings with him. Under re-examination, the Grievor testified that he did discuss the students' complaint of January 13, 1999 with the Chair, Dr. Paul McFetridge. This did not appear to him (the Grievor) to be a student evaluation. His conversation with Dr. McFetridge was brief. When he expressed to Dr. McFetridge that the student(s) "went for the jugular", he agreed. His impression was that Dr. McFetridge was fulfilling an obligation, in showing the complaint to him. He (Dr. McFetridge) did not appear to be concerned about it. Dr. McFetridge did not suggest any changes in his teaching or that he participate in an instructor skills workshop. He (Dr. McFetridge) did not make any recommendations to him. He did not know whether the complaint was on his employment file. He was not aware of any requirement that he not reschedule classes. He had not received any disciplinary or warning letter from the Department. He had seen the forms for student evaluations with a rating scale. Students are told of the purpose and of anonymity. He understood that the results are kept confidential. He had never been "rated in comparison". As to the students' complaint, he had never been contacted by an Ombudsperson. He was not aware that the successful candidates had previously taught LING 220. LING 220 is typically a large course in terms of the number of students. He did not respond in writing to the students' complaint. He was not encouraged to do so. He felt that he learned from being made aware of it. He felt that he had placed a teaching dossier on his file.

 9      Christine Stoddard testified as a Chief Steward for the Union since May of 2001. She described her role as a Steward. At the University, the Union represents between 800 to 1,000 non-Faculty support staff, including Teaching Assistants and Sessional Instructors. She identified the Grievance dated April 10, 2002, and the applicable Collective Agreement. The grievance concerned the fact that the Grievor had not been offered the opportunity to teach LING 220, although he had priority for the course. The qualifications for Sessional Instructor are as set forth in Article XIV of the Collective Agreement. She was not aware of any other agreed to qualifications, including those required for LING 220. For Sessional Instructors, the only seniority provision is found in Article XIV.E. of the Collective Agreement. Where Sessional Instructor positions are posted, the Union receives copies. The Union also receives copies of contracts as they are awarded, and a general report for specified periods. Ms. Stoddard had reviewed the Grievor's employment file with the University. The students' complaint of January 13, 1999, was not in the file. In that file was, inter alia, a letter of recommendation of July 6, 1998, a letter of recommendation of February 15, 1993, a Performance Review: Dwight Gardiner in 1993, and an e-mail of recommendation of July 3, 1998. As to the appointment of Dr. McKercher to LING 220 in April/May 2002, she was not aware that he had previously taught the course. Under cross-examination, Ms. Stoddard testified that there was a Management Rights clause in Article 1 of the Collective Agreement. She had participated under the current Collective Agreement in the selection process for a Teaching Assistant. She graduated in 2002 and is currently a Sessional Instructor. She is not a student of linguistics and has had no experience with LING 220.

 10      Dr. Murray Munro testified on behalf of the University as a Professor in the Linguistics Department. He obtained his Ph.D. in 1992. He was an Assistant Professor until 1998, when he was promoted to Associate Professor with tenure. He was involved in the Selection Committee for the courses posted in late 2001. As to LING 220, he described it as a gateway course and one of the most important in the Department. It was a prerequisite for senior courses. By "gateway" he meant first exposure to linguistic analysis, and served as a means of attracting students to the program. It served as a means of keeping the program going, and providing a basis for a wider range of courses. The Selection Committee struck was comprised of Dr. McRobbie, himself and Ms. Rita Parmar. Ms. Parmar provided information and material as to process and policy, and a copy of the Collective Agreement. It was not his first time in the role of hiring and selection. He stated that there was a common understanding or convention amongst academics as to the evaluative approach. The essential features were scholarship and teaching. As to scholarly achievements, there is the evaluation of published research in the form of conference proceedings being attended and presentations. As to teaching, there was experience, research grants, kinds of courses and the range. In addition, there were teaching evaluations from students, teaching awards and whether the candidate had done any special work such as taking courses to improve teaching skills. He stated that the necessary information was to be found in the academic CV as a dossier. He keeps his CV, which he identified, current by adding to it as events transpire, such as the publication of an article, receiving a research grant, or obtaining a graduate student. He is evaluated on his CV every 2 years for salary purposes. A publication "formally accepted" means that the publisher will publish the work. A "referred publication" is one that has undergone a vigorous evaluation by other scholars in the field and been recommended for publication. A "monograph" could be a book, study guide, or the results of a survey for the Government of Canada. With conferences there are two modalities of written and oral presentations. "Selected colloquia" are lesser forms of presentation. They are less prestigious, in terms of scrutiny or evaluation. For evaluative purposes, one only looks to actual publications or where there is a firm indication of acceptance for publication. These conventions were brought to the selection process for the summer courses of 2002. Dr. McRobbie asked him to be with her on the Committee and he agreed. In mid-March 2002, they met to review the materials and make the hiring decisions. The materials reviewed were the applicants' CV, and their dossiers including teaching evaluations from students. Some decisions were made very quickly, as in the case of one applicant or a right of first refusal. With respect to LING 220, there were 3 serious candidates considered, being the Grievor, Mr. Deby and Dr. McKercher. The Selection Committee had the CV for each person. The Committee realized that this was an important matter for decision. It was the hardest decision that day. They spent 20 to 25 minutes looking at the CVs. They read them and made comments as to strengths and weaknesses. They spent some time going through the student evaluations. The CVs and evaluations were weighed against the common conventions - scholarly output in terms of quantity, the number of conferences where there were presentations, the quality of conferences, where some are more prestigious, where recency is very important, and the number of recent publications. There was the problem too, as it was tough to impose such criteria on Sessional Instructors. In terms of research, there is a 6 year timeframe where being outside the 6 years is "inactive". The selection of Sessional Instructors is not viewed as other than academic appointments. A tenured Faculty person would teach a linguistics course. For the selection for LING 220, there was a need for a good person, and they did not want to compromise the course in any way. They considered quantity and quality of research achievements, publications and recency. They looked at these matters in detail and came to certain conclusions. Dr. McKercher was the best in terms of research, Mr. Deby was second and then the Grievor. The differences were significant. He and Dr. McRobbie reached those rankings independently. In reviewing the CVs, Dr. McKercher had an impressive list of conference presentations in the period 1996-2002. There were a lot of recent publications. The quality of presentations were good, as for example in Sweden and Chicago was prestigious. The listed publications was good. Dr. McKercher received his Ph.D. in 2001 and there was a good amount of quality output. He formed a very positive impression of Dr. McKercher. As to Mr. Deby, he did not have his Ph.D. at the time, as he was "all but dissertation". In applying the conventions, there was a good level of conference presentation. As to the quality, there were a couple of good indications. Georgetown University was a definite sign of good scholarly achievement. The American Anthropological Association was very good. There was a good level of recent publications and the quality was good. He formed a good impression of Mr. Deby. As to the Grievor, he noticed that he achieved his Ph.D. in 1993. As to his CV, he did not consider it to be very impressive for a scholar in the middle of his career. In terms of recent output, there was not much in terms of publications. "To appear" doesn't count. As to conferences, there were three recent things. The same things were listed as publications in 1996. There was not the level of output that he would have expected of a person in middle career or even of a junior person. The conferences listed were not really international level and were not prestigious. The Grievor's scholarly achievements were notably less than the other 2 candidates. He formed the conclusion that Dr. McKercher was the best candidate. Dr. McRobbie expressed the same conclusion to him. They then turned to the matter of teaching. Two of the candidates had taught before, namely the Grievor and Mr. Deby. There were student evaluations on file and therefore a means of evaluating them. Dr. McKercher had no such evaluations. Dr. McRobbie sought information from the Chair of the Linguistics Department at the University of Victoria. The feedback was a very positive impression of Dr. McKercher's teaching and scholarship. He was very highly recommended as having excellent teaching skills. The Grievor had taught many courses, including LING 220. He had the experience. Mr. Deby had taught LING 260 - that was a good starting point at the same level and the same pool of students - it was a similar course. LING 220 was quite a large course that could have over 100 students. It was smaller "downtown". Dr. McKercher had taught at the University of Victoria, which was a somewhat similar, relevant experience. He and Dr. McRobbie were not at all concerned that Dr. McKercher could handle the course content. They noted that Mr. Deby had also taken a couple of courses on campus in teaching skills development. There was no indication that the other candidates had taken such courses. Dr. McKercher had received a teaching award at Stanford University, a very prestigious institution. Dr. Munro stated that they took "those factors" into account. The teaching evaluations of Mr. Deby and the Grievor were reviewed. The student evaluation forms are on a scale of 0 (lowest) to 4 (highest). There is a numerical summary, or mean score that is prepared. He was quite shocked and surprised at the weak evaluations for the Grievor. He had had the impression from a previous Chair in the Department, Dr. Lincoln, that the Grievor had a good teaching record. The Grievor had a weak evaluation, not incompetent, but weaker in comparison to Mr. Deby. The Grievor's best ratings were at the level of Mr. Deby's worst ratings. He came to the conclusion that Mr. Deby had been rated much better by students than the Grievor. In the scholarship evaluation of the Selection Committee, the ranking was Dr. McKercher, then Mr. Deby and then the Grievor. In the teaching evaluation, the ranking was Mr. Deby, then the Grievor, plus Dr. McKercher's information was very positive. He (Dr. Munro) concluded that nothing in the teaching evaluation changed the ranking of the 3 candidates according to scholarship. When he expressed this to Dr. McRobbie, she agreed with him. They therefore, on the basis of their assessment, determined that they should:

-

hire Dr. McKercher for the "downtown" course of LING 220, which was a smaller class, and therefore "try him out"; and

-

hire Mr. Deby for the Burnaby campus course of LING 220, as it was a "bigger section - he had taken a course on how to teach large classes and had taught for us before".

 11      Once these decisions were made, he (Dr. Munro) had no further involvement. In making these hiring decisions, the Selection Committee had before it the record of Sessional Instructor assignments from 1998-2 to 2002-2. The committee had the dossiers. It was apparent that the Grievor had taught LING 220 many times. That was not a decisive determination, as the number of times taught was not so important as how well it is done. Some people "burn out", some lose interest and are less active, and less current in knowledge. He did not agree with the Grievor's characterization of LING 220 as a routine course without much change year to year. He said there is a new textbook every couple of years. In his view, it was very important to be up to date in order to teach the course. The Selection Committee did not consider a memorandum by the Chair of the Linguistics Department dated July 3, 1998 concerning the selection of the Grievor as a Limited Term Lecturer. He (Dr. Munro) stated that it would not have affected his assessment in the selection. He stated that it was an "old letter" and that the Grievor looked much better on paper than he does now. He stated that some of the information in the memorandum is "demonstrably false", namely, that student evaluations ranked the Grievor as an outstanding teacher. As to the Grievor's CV, he was surprised to see that the last recorded events were in 1998. He concluded that he did not update the CV since 1998, which did not "speak well" of the candidate. It was his obligation to make sure that it had the most recent information. He had not seen the letter of recommendation from Professor Gerdts dated July 6, 1998. It would not have changed his overall impression. He would have given it even less weight, knowing that she had not attended any of the Grievor's classes. He had not seen the letter of recommendation from the Chair of the Linguistics Department dated February 15, 1993. He stated that it was very old, and one could not assign any importance to it. What may have been fair comment in 1993, may no longer be true. The Grievor's Performance Review of August 1993, was old and it would not have affected the decision. He stated that the Kamloops program is a very different one, a First Nations languages program with a very different focus. He had not seen the e-mail from Associate Professor Paul McFetridge of July 3, 1998, and stated that it would have had "no impact". It is a very general statement, and not very supportive. Dr. Munro identified a binder of transcribed student evaluations concerning the Grievor and Mr. Deby, that was available for review by the Selection Committee. The evaluations were in chronological order, with the most recent being at the front of the binder. About 300 pages concerned the Grievor, while 13 pages were for Mr. Deby. There were 18 numerical summaries for the Grievor in LING 220, and 3 numerical summaries for Mr. Deby in LING 260. Dr. Munro stated that he and Dr. McRobbie leafed through them and read them. His focus was particularly on the most recent evaluations. As not all students write comments, the numerical summaries were most important as they provide the best basis for comparison. The overall impression of the Grievor was one of mediocrity. His ratings were not good, but marginal, and "quite a bit" lower than Mr. Deby's. The Grievor's best rates were similar to Mr. Deby's worst. As to the Grievor teaching for a longer period of time, it was only a factor. With more experience, one would expect a better evaluation as one "gets a hold" of the teaching requirements. The evaluations of the Grievor concerned the main campus, downtown or Harbour Centre, and Kamloops. Kamloops was a very different program. Dr. Munro was not aware of all the details concerning the Kamloops program, but his impressions were of a specialized focus on first nations, and very small classes. The Selection Committee concluded that Mr. Deby had significantly better records, in respect to student evaluations, than the Grievor. Under cross-examination, Dr. Munro stated that the Selection Committee took about 25 minutes to review the student evaluations and the CV's of the 3 "serious" candidates. He did not review any other material. He would up-date his own CV on a regular basis. Sessional Instructors do not receive salary reviews. He understood that their wages were determined through collective bargaining. Their abilities and qualifications are irrelevant to their wage rate. He (Dr. Munro) had never had a book published. A letter of acceptance for publication would be taken into account. He acknowledged that in the recommendation of the Grievor for a Limited Term Lecturer position in July 1998, he (Dr. Munro) was a member of the Appointments Committee. The memorandum of Dr. Lincoln, Chair of the Linguistics Department, would not have affected his decision in this selection, as some of the information was "demonstrably false". He could not account for the motivation of Dr. Lincoln's statements. He (Dr. Munro) could not recall any evidence of the Grievor being an excellent teacher. When shown 3 specific student evaluations from the general binder that were favourable to the Grievor, he stated that he could not recall them. In any event, he insisted that on the whole of the evaluations "the evidence goes against him". He acknowledged that in the Position Announcement for Sessional Instructor (several positions for the summer 2002), the job requirements were listed. He acknowledged that there was no reference to research or publication, but noted that CV's were required. He acknowledged that in the Collective Agreement, the definition of a Sessional Instructor and the stated qualifications do not refer to research or publication. Although they are very similar, he did not view Sessional Instructor appointments to be the same as Faculty appointments. Both are academic appointments. Although the same credentials and expectations were considered, he did not think that the same standards would apply. The job of teaching a course was the same. He would typically teach 4 courses in a year. He would receive a research semester in a year, when he was not required to teach. Every 7 years, he could apply for a sabbatical, where he could be relieved of teaching for up to 3 semesters. The 2 year criterion was for merit pay. The 6 years was a typical window in the academic community for determining whether recently "active" in publications. The 6 years seemed to be appropriate as it covered the 3 candidates under review. As to the number of times that the Grievor had taught LING 220, he stated "many times ... more than 10". It would not surprise him, if the Grievor had taught 9 courses in the fall of 1996, 7 courses in the 1997 academic year, 8 courses in the period September 1998 to August 1999, and 8 courses in the fall of 2000. He recalled that Mr. Deby had taught 3 or 4 courses. Dr. McKercher had never taught at the University, but had done so at another institution. Dr. McKercher's CV indicated that he had taught 5 courses at the University of Victoria, and had acted as a Teaching Assistant at Stanford University. His (Dr. McKercher's) award as a Teaching Assistant had impressed him. There were no teaching evaluations of Dr. McKercher to consider. Dr. McRobbie sought information on Dr. McKercher from the Chair of Linguistics at the University of Victoria, Dr. Lukari. The information was that he had "excellent teaching skills". The Selection Committee took that information into account. He (Dr. Munro) did not know what that information was based on. He (Dr. Munro) stated that he would expect an honest and trustworthy opinion. Dr. McRobbie did not disclose to him the basis for Dr. Lukari's opinion. The July 6, 1998 opinion letter of Professor Gerdt's regarding the Grievor would not have affected his assessment of the Grievor. LING 220 and LING 260 are large courses, with the latter not being as large. It would not surprise him if a LING 220 course involved over 200 students and the supervision of as many as 5 Teaching Assistants. His assessment of the Grievor was not affected by student evaluations for teaching in Kamloops, as "we had much better evidence available" from the Burnaby campus and downtown. As to Dr. McKercher teaching elsewhere, he stated that the Selection Committee had "a strong recommendation, an award as a Teaching Assistant ... the only evidence was positive evidence". The only evidence regarding the Grievor was of mediocre teaching. There were no student evaluations for Dr. McKercher or statements from anyone who had attended his classes. He (Dr. Munro) could not recall any discussions with anyone as to the Grievor's suitability, other than with Dr. McRobbie. As to whether he had formed an opinion as to the Grievor's suitability as a Sessional Instructor, he stated that "he was a satisfactory instructor". At the time of the selection, he was aware that Dr. McRobbie and others had been having some problems with the Grievor in supervising the preparation of a Distance Education course. Dr. McRobbie told him that the work was extremely poor. He (Dr. Munro) did not recall that he took that into account when assessing the Grievor's ability to teach LING 220. The CV and the student evaluations were the only things that he looked at regarding the Grievor, although there were other "papers on the table". Dr. McRobbie would have drawn his attention to them, if they were of any importance. There were no evaluations of the Grievor, save for student evaluations. For Dr. McKercher, there was the CV and the reference from Dr. Lukari. For Mr. Deby, there was a CV and student evaluations. Under re-examination, Dr. Munro stated that student evaluations were for both the course and the instructor. He did not give more weight to negative comments concerning the Grievor, than to the effusive comments. Not all students record comments, and he stated that it was a very unscientific way of "getting a recommendation". It was not an expression of the whole class as taught. For teaching in the Department, it was important for Faculty members and Sessional Instructors to be up-to-date in the field. In describing the Grievor as a "satisfactory instructor", he meant that he meets the minimum requirements that he considers necessary for Sessional Instructors. He believed that he had discussed the Distance Education project with Dr. McFetridge. There was no consideration required of a right of first refusal, and the past exercise of such a right was not considered by the Selection Committee. When a Faculty member is hired as an Assistant Professor or Professor, they may be hired into a tenure track position. Dr. McRobbie was told by Dr. Lukari that Dr. McKercher was an excellent teacher and eminently qualified to teach the course that the Committee was seeking to fill. There was nothing unusual in seeking a recommendation such as the one from Dr. Lukari.

 12      Dr. Zita McRobbie testified as an Associate Professor in the Linguistics Department at the University. She had been an academic at the University since 1989 and prior to that, at the University of British Columbia. She was involved with Dr. Munro in the Selection Committee for LING 220 in the spring of 2002. She described the process that the Committee employed. There were 8 written applications, including the Grievor's, which were short listed to 3 persons. There were CV's for the Grievor, Mr. Deby and Dr. McKercher. The student teaching evaluations for the Grievor and Mr. Deby were present. Dr. McRobbie had a long telephone conversation with Dr. Lukari, Chair of Linguistics at the University of Victoria, concerning Dr. McKercher. She described the LING 220 course to Dr. Lukari as a difficult, gateway course for Linguistics, where classes were expected to be large. She told him the textbook to be used, and the core area to be covered. The responses of Dr. Lukari were "lots of teaching potential, ability excellent, very serious and demanding". Dr. McRobbie stated that there were no words of doubt from Dr. Lukari. At the Selection Committee meeting, she reported to Dr. Munro that Dr. Lukari's recommendation for teaching and academic was "positive". She confirmed that the Committee had before it the CV's for the Grievor, Mr. Deby and Dr. McKercher. She was subsequently aware of a more current CV for the Grievor. She confirmed that she had taken to the Selection Committee meeting, numerical summaries of student evaluations for the Grievor in LING 220 for the spring, summer and fall 2001, in LING 222 for the fall 2000, and in LING 110 for the fall 1999, summer and fall 2000 and summer 2001. The resulting average for LING 220 for instructor was 2.87 and for LING 110 for instructor was 2.70. As to the process of the Selection Committee, Ms. Parmar presented the Collective Agreement. On the basis of academic performance and being active for the last 6 years, Dr. McKercher's application appeared to be the strongest. The ranking of the short list was Dr. McKercher, Mr. Deby and the Grievor. As to teaching performance, the Grievor was acceptable or satisfactory, but "not as we would like" it to be. For Dr. McKercher, there were no evaluations, but a good recommendation of teaching excellence. For Mr. Deby, the teaching performance was very positive, very high standards, and student evaluations were a positive factor. As to the Grievor, the Committee found that he was experienced. He had been teaching LING 220 for a long time. There were concerns as to his ability to organize the course and there were adverse comments from students. In looking for patterns, they found a consistency of mediocre teaching performance. A favourable letter from a student dated December 4, 2000, concerning Mr. Deby was considered, as was the teaching award for Dr. McKercher as a Teaching Assistant. Dr. McRobbie described her involvement with the Grievor, who was retained to develop a course for Distance Education. The request came to her from the Chair of the Department, Dr. Lincoln, who gave her the impression that the need for Faculty approval would be nothing more than a formality, and on that basis, she agreed to be involved. As they began to work together, she made it clear that several things needed to be changed and she began to realize the amount of work that would be required of her. As it did not appear that the project would soon be finished, she asked other Faculty members to become involved. As the matter progressed, it appeared that the Grievor did not have the time to complete the work. With respect to the selection, she tried not to consider the Distance Education matter and stated "but we knew about it". "We tried to look at academic performance and teaching ... it was mentioned ... a general thing in the background". She tried to set it aside and not consider it in the competition. Dr. McRobbie stated that she had a very positive relationship, opinion and regard for the Grievor. She was not aware of any bad or negative feelings towards him. The Selection Committee was just doing what had always been done, with the complication of the Collective Agreement to be considered. That is why Ms. Parmar was there. Dr. McRobbie thought that the Committee made the right decision. Ms. Parmar played no role in the academic evaluation. During the meeting of the Selection Committee, she did not see material concerning the Grievor, namely, a memorandum from Dr. Lincoln of July 3, 1998, a letter from Professor Gerdts of July 6, 1998, a letter from Dr. Perry dated February 15, 1993, a performance review of August 1993, or an e-mail from Dr. McFetridge of July 3, 1998. Dr. McRobbie stated that as a Committee member, if she had seen those documents, they would not have made any difference in the assessment of the candidates. She stated that Dr. Lincoln's memorandum was designed to provide the Grievor with an opportunity for research and "I would agree with that". Dr. Lincoln had concluded that the Grievor should be given the Limited Term Lecturer position. On the criteria considered, it would not have changed "our decision" and the Grievor's CV was the same as it was in 1998 and then before the Selection Committee. She did not speak to the Grievor about his CV not being up-to-date, prior to the selection being made. She said that it was the applicant's responsibility to provide an up-to-date CV. Dr. McRobbie stated that with respect to publications, "to appear" does not carry much weight. The Grievor's CV was not treated any differently from an academic CV. The Committee applied the same standards to all 3 candidates being considered. The 6 year period of review could have worked to the disadvantage of the persons with a shorter career. When asked about the relationship of research and the ability to teach, Dr. McRobbie stated that even at the lower level, there was an expectation of being up-to-date. Students expect their instructors to be current. It is very important for "our" gateway course, with several follow-up courses being dependent upon it. Under cross-examination, Dr. McRobbie stated that she was not sure of the amount of time spent by the Committee in the selection from the 3 candidates. She recalled that the entire meeting took about 1- 1/2 hours. There was only one meeting. The material reviewed for Mr. Deby included a letter from a student. There were no student evaluations for Dr. McKercher, for whom the Committee reviewed his CV and the phone call from Dr. Lukari. The only appointment for the Grievor recommended by the Selection Committee was for LING 110 (Day on Campus) for the summer of 2002. Dr. Lukari gave Dr. McKercher a very positive reference regarding teaching ability and academic qualifications. Dr. McKercher was the only outsider. The Committee did not seek academic qualifications for the other candidates, as they were working for the University. Dr. McRobbie did not seek a reference for the Grievor and did not tell Dr. Lukari that the Grievor was also a candidate. Dr. McRobbie stated that "We did not know about McKercher ... that's why I called. We don't ask for reference letters for sessional appointments. I wanted to make sure that there was support for the appointment". Dr. McKercher was an unknown, and at a disadvantage. She did not tell Dr. Lukari that the Grievor was also involved in the selection and stated "No, that was not relevant. We don't ask for references for sessional appointments". Dr. McRobbie did not remember what Dr. Lukari's statements were based on. She was "assuming" that they were based on knowledge of and close association with the candidate. In considering the student evaluations of the Grievor, she said that she reviewed "most of them". As to the evaluations for LING 220, she reviewed "most of them, starting with the most recent ones". She was concerned with a "pattern" regarding organization of the course. In the main, Dr. McRobbie looked at the student evaluations for LING 220 and LING 110. Those were not easy courses because of the numbers of students and the course content. There was no other material reviewed in relation to the Grievor. She acknowledged receiving the Grievor's application of February 17, 2002. Ms. Parmar was monitoring the application of the Collective Agreement. Dr. McRobbie's understanding as to the obligation of the Committee under the Collective Agreement was that it was a competition, there was no right of first refusal to consider, and that "priority was not applicable in this competition". The Committee considered "better qualifications or abilities" under Article XIV.E.3 of the Collective Agreement. The Selection Committee did not have employment files before it to review. Dr. McRobbie stated if they had had the Grievor's employment file before it, it would not have made any difference, as it was the same CV. She did not know what was in the employment file. She did not know if it was Departmental practice to have the employment file. Save for student evaluations, there was nothing before the Committee expressing dissatisfaction with the Grievor. As to the Distance Education experience, Dr. McRobbie stated "We tried not to consider it, but it was a factor ... it wasn't enhancing ... we didn't weigh it in the competition". She stated "It didn't play any part in the criteria, as we were making an objective determination". She did not discuss the currency of the Grievor's CV with Dr. Munro. She called Dr. Lukari to seek a recommendation. The Selection Committee was out to seek the best recruits. The Committee wanted to ensure that the person on campus be someone who could deal with large classes, and Mr. Deby had that experience. Dr. McKercher was selected for Harbour Centre, as he was unknown, and to be "on the safe side" he was given the easier course. Ms. Parmar was there to ensure that the Committee did the right thing under the Collective Agreement. The Kamloops courses had always been recognized as being important, but as very different. The Committee was just looking at LING 220 as offered on campus and at Harbour Centre. The Kamloops LING 220 was different in terms of student populations.

POSITION OF THE UNION

 13      Ms. Black, on behalf of the Union, submitted that candidates are entitled to a fair hiring process. There were several factors which indicate that the Grievor did not receive such an assessment. The Selection Committee did not seek an update to the Grievor's CV. The Committee then offers the explanation that there was nothing that had happened, in recent times, that would have made any difference. Added to that is the predisposition of Dr. McRobbie against the Grievor, arising from their experience in the preparation of a Distance Education program. Dr. McRobbie was disappointed with the Grievor, and tried not to have that influence her. Despite that, it is clear that that remained in the background. The Selection Committee did not have the employment file before it to review and consider, as required by Article XIX.F. of the Collective Agreement. Ms. Parmar was present during the selection to ensure compliance with the Collective Agreement. The verbal reference from the University of Victoria for Dr. McKercher was considered, while the July 6, 1998 recommendation of the Grievor by Professor D.B. Gerdts was not. Dr. Munro stated that even if it had been before the Committee, it would not have made a difference. The recommendation by Dr. Lukari for Dr. McKercher was the only evidence as to his teaching ability before the Selection Committee. Dr. McRobbie needed to make that telephone call, as the Committee had nothing else to rely on. Dr. McRobbie obtained a recommendation for both teaching ability and academic performance, but the Grievor's references were not considered. In effect, Dr. McRobbie sought the views as to an "outsider", namely Dr. McKercher, without any evaluation as to teaching. Dr. Munro was unable to provide any basis for the reference obtained from Dr. Lukari, who he (Dr. Munro) assumed was a trustworthy academic. There was no indication that Dr. Lukari had ever attended any of Dr. McKercher's lectures. The Selection Committee did not know the basis for that recommendation and did not take care to find out. The Selection Committee, by inference at least, raises a question as to whether those who had recommended the Grievor were trusted academics, namely Dr. Lincoln, Professor Gerdts and Dr. Perry. Their views as to the Grievor were not considered in the assessment of the Grievor. Dr. McRobbie made the telephone call to Dr. Lukari at the University of Victoria and sought a reference for Dr. McKercher, but it made no sense to her that she should obtain a reference for the Grievor as well. The Committee did not feel the need for a reference for the Grievor, as they knew him as a graduate and colleague, and yet neither of them were expert in the area of the Grievor's specialization. Dr. Munro estimated that it took about 25 minutes to assess all 3 candidates. Because they knew the Grievor, they did not bother to make a proper assessment of him. In reviewing the Grievor in terms of research and publication, the Selection Committee failed to consider the Grievor's heavy teaching load as a factor. Dr. Munro was not aware of the number of courses that the Grievor had been teaching. All that information would have been made available with the Grievor's employment file. In addition, the Selection Committee over-emphasized the importance of publication as a factor, as affecting one's ability to perform the duties of a Sessional Instructor. Neither the job posting nor the Collective Agreement refer to publication as a requirement. According to Dr. Munro, the Grievor had not published in the right or famous journals, or attended the prestigious conference, however his CV indicates that he was doing research in his area of specialization. Research in one's area makes for a better teacher. Ms. Black referred to a number of authorities:

 14      In Re United Electrical Workers, Local 512 and Tung-Sol of Canada Ltd. (1964), 15 L.A.C. 161 (Reville et al) at p. 162, as to seniority being one of the most important benefits achieved through collective bargaining, which must be construed with the utmost strictness.

 15      At the University, Sessional Instructors are normally appointed for a term of 4 months. At the time of the Grievor's application to teach LING 220, he indeed had priority under Article XIV.E.3 of the Collective Agreement, unless a candidate had "better qualifications or abilities". The Grievor had never been informed of any dissatisfaction with his teaching. This was not a matter of right of first refusal. Teaching a course and priority allows for the acquisition of a right of first refusal. That is the extent of seniority rights for Sessional Instructors. After 17 years, that is all that the Grievor had under the Collective Agreement. There is no dispute that the Employer has the right to determine "qualifications and abilities", but the Employer cannot exercise that discretion in an arbitrary way. Under the language of the Collective Agreement, an arbitrator is entitled to review such discretion for reasonableness, honesty and completeness. There must be the absence of discrimination or malice. The Employer cannot ignore relevant factors or consider irrelevant ones: see Re Corporation of the Borough of Scarborough and Canadian Union of Public Employees, Local 545 (1977), 14 L.A.C. (2d) 210 (Schiff et al) at p. 211.

 16      In Simon Fraser University and Association of University and College Employees, Local 6, Teaching Support Staff Union, B.C.L.R.B. No. 169/83 (Black et al), a reconsideration panel of the Labour Relations Board was concerned with language of the Collective Agreement which is the same as that found in Article XIX. F. The Board upheld the conclusion that a procedural requirement of considering a person's employment file had not been followed, where it was directed that it "... shall be ... considered". At page 26, the Board noted:

In the present agreement under dispute, Article XVIII(E) requires a fair and objective assessment of the criteria by the committee prior to the selection being made. In our opinion, that Article gives rise to a responsibility on the part of the Employer, to exercise its discretion in a reasonable fashion so as not to negate the grievor's right under that Article. An employer in these circumstances cannot take away with its left hand what it has given at the bargaining table with its right. Dr. Calhoun, by reason of his prior recommendation to Dr. Lincoln, had effectively predetermined the issue he was assigned to decide. As a result, he was not in a position to bring to the selection committee "... an honest appraisal within the parameters of the collective agreement".

 17      In this matter of selection, the Committee cannot be heard to say, in effect, that the contents of the Grievor's employment file did not matter. Dr. McRobbie had an unhappy relationship with the Grievor over the Distance Education project and was disappointed in him. Her feelings towards him made it impossible for her to make an unbiased assessment of his qualifications and abilities. Her testimony that she tried not to consider "it" but it was there, does not create a favourable impression. The members of the Selection Committee had an interesting way of twisting the successes of the Grievor. As an example, Dr. Munro stated that a recommendation of the Grievor for a Limited Term Lecturer position was "demonstrably false" and Dr. McRobbie maintained that Dr. Lincoln was predisposed to giving the Grievor the position. This was their view, rather than viewing it as a merit based appointment.

 18      In Re Nechako Stuart Association for Community Living and United Food and Commercial Workers Union, Local 1518 (2001), 98 L.A.C. (4th) 55 (Hope), the Arbitrator stated at p. 69:

By contrast, the language in this dispute vests a wide discretion in the Employer in the filling of vacant positions. In particular, an applicant who is "relatively equal" does not meet the criteria in Article 17.4. The language does not accommodate the interpretation placed upon it by the Union. It provides for a test in which the Employer is recognized as having the right to "determine" whether a senior applicant is "equal" to a competing junior application with respect to the criteria set out in the provision. That language contemplates an arbitral review in which the question asked is whether the Employer acted reasonably in preferring one applicant over another.

The test of reasonableness in arbitral terms is whether an impugned decision was arbitrary, discriminatory or made in bad faith ...

 19      In Re University of British Columbia and Canadian Union of Public Employees, Local 116 (1982), 5 L.A.C. (3d) 69 (Munroe et al), the Board stated at pp. 73-74:

... Managers know their employees. They know something about their training, talents, work habits, leadership attributes, etc. They are not thereby disqualified from making judgments affecting the careers of their employees. What is required is honest reflection, an honest appraisal within the parameters of the collective agreement. That is more than an avoidance of complete dishonesty. It implies as well a genuine preparedness to be influenced and persuaded by the facts as they are revealed during the selection process - even though those facts may not buttress any preconceived notions.

 20      Ms. Black submitted that on the evidence adduced, Dr. McRobbie was not prepared to be "influenced and persuaded by the facts", as her feelings towards the Grievor operated in the background in her assessment of his application for the Sessional Instructor appointment.

In Re North York General Hospital and Service Employees' International Union, Local 204 (1989), 7 L.A.C. (4th) 418 (Mitchnick), the Arbitrator stated at p. 426:

... Thus, I find, Mr. Camaganacan, in making the sole determination that was required of him under art. 11.03 of the collective agreement, not only failed to properly apprise himself of the grievor's patently relevant experience, but took into account a totally irrelevant consideration: the related experience of another employee who was not a member of the full-time bargaining unit.

 21      Ms. Black maintained that the University erred, in that consideration of the Grievor's involvement in the Distance Education project was irrelevant to the Grievor's performance as a Sessional Instructor. There was also a failure of the Selection Committee to consider the heavy teaching load of the Grievor and its effect on his ability to publish. The matter of "publish or perish" was simply an inappropriate consideration, as the appointment being sought was for that of a Sessional Instructor and not a Faculty position. Neither the Position Announcement nor the Collective Agreement had requirements regarding publication. The Grievor was teaching an average of 8 courses a year in the 6 year period under consideration by the Selection Committee, which would make it difficult for the Grievor to publish. The Union would not dispute that the successful candidates had good academic qualifications, but it does maintain that the Grievor was better qualified to teach LING 220. He had taught the course more than 20 times. Mr. Deby had never taught the course. Dr. McKercher had never taught at the University and there was no basis for comparison to what he had taught. Dr. Lukari thought highly of Dr. McKercher. That does not translate into Dr. McKercher having better qualifications or abilities to teach than the Grievor. Mr. Deby was close, but he had to be better under the Collective Agreement. He had never taught LING 220. There was no evidence to suggest that he was better qualified than the Grievor to teach LING 220. The University bears the onus of proving that the junior candidate was more qualified.

 22      In Re Workers' Compensation Board of British Columbia and Workers' Compensation Board Employees' Union (1989), 4 L.A.C. (4th) 141 (Hope et al), the Board stated at p. 167:

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.

 23      Ms. Black submitted that the University had not established a discernible, material difference. Mr. Deby had not completed his Ph.D. and had only taught one course at the University. Dr. McKercher had never taught at the University. There was no basis for the opinion rendered by Dr. Lukari, and the Selection Committee had simply accepted his word as to Dr. McKercher's teaching skills. Both Mr. Deby and Dr. McKercher were clearly junior to the Grievor. The University was not free to ignore facts in its possession, and the Collective Agreement required that the employment files be considered.

 24      In Re Workers' Compensation Board (supra), the Board stated at p. 162:

The arbitral authorities, as we will detail shortly, contemplate than an employer will restrict its review of applicants to a consideration of factors that are relevant to an application of the standard the parties have agreed to in their collective agreement ...

 25      In Re Newnes Machine Ltd. and I.W.A.-Canada, Local 1-417 (1996), 53 L.A.C. (4th) 431 (Munroe), the Arbitrator stated at p. 442:

The second implication of my findings aforesaid is that they raise issues of simple fairness. For about 13 years, the grievor reasonably believed that the employer viewed him to be performing competently during periods that he was the relief charge hand. That belief arose from the absence of any meaningful criticism by management of his acting performance of the duties of the position. That does not create an unrebuttable presumption of competence. However, at the least, it passes the evidentiary onus to the employer to persuasively show that its silence over the years should today be displaced by an arbitral finding of a lack of competence.

 26      Ms. Black submitted that there was no evidence that the University had taken issue with the Grievor's teaching. Following the student letter of complaint of January 15, 1999, the Department continued to appoint the Grievor, even where there was no right of first refusal, such as in the summer of 1999, summer of 2000 and the fall of 2000.

 27      In conclusion, Ms. Black maintained that the Employer had ignored relevant and considered irrelevant factors. Dr. McRobbie was biased, in a labour relations sense, against the Grievor. The candidates were not treated in an equitable manner. A reference was sought for Dr. McKercher, where references of the Grievor were not considered. The Selection Committee should not have confined itself to student teaching evaluations as the sole method of assessing the Grievor's teaching abilities.

 28      As mentioned in Re North York General Hospital (supra), at pp. 427-430, in appropriate circumstances, an arbitrator need not refer the selection back to the employer for a further assessment.

 29      On behalf of the Union, Ms. Black sought a declaration as to the violation of the Collective Agreement, a determination that the Grievor be deemed to have taught LING 220 in the summer of 2002, an order that the Employer henceforth comply with the provisions of the Collective Agreement, and an order compensating the Grievor for teaching both courses of LING 220, with Court Order Interest.

POSITION OF THE EMPLOYER

 30      Mr. Gilligan-Hackett, on behalf of the University, submitted that the hiring decision of the Employer required a careful consideration of its rights and obligations under the Collective Agreement. In Article XIV.E.3, the Employer is vested with a high degree of discretion, where the words employed are "... in the opinion of the department ...". The matter in question did not involve a right of first refusal, however, the Grievor had met the requirements for a priority. Whether priority amounts to seniority need not be resolved. The words employed in the Collective Agreement affect the factors to be considered in selection, the manner in which those factors are considered, the standard of review and the type of remedy available. Not every breach of a collective agreement will result in a remedy. The Selection Committee was entitled to reach an opinion as to whether another candidate had "better qualifications or abilities". Contrary to the assertions of the Union, seniority does not exist in the Collective Agreement. The question is whether the process used was reasonable, free of arbitrariness and without bias. A strict reading of the Collective Agreement provides for a disjunctive consideration of "qualifications or abilities". Here, there is a provision for a high degree of subjective discretion, to formulate an opinion in relation to superior qualifications or abilities. The Union cannot ignore these realities. In this instance, the Employer formed a Selection Committee, where there is no requirement to have one. That decision reflects a commitment to take the matter seriously. One member was to ensure compliance with the Collective Agreement and the two Faculty members dealt with the substantive decisions. All of that indicates good faith and a desire to "get it right". The Grievor was short listed and considered for the appointment, with the implication that he met the minimum requirements for the position. Drs. Munro and McRobbie accepted that the Grievor met the minimum requirements or standards for the position. There was no suggestion that his qualifications were less than acceptable. That is a sign of good faith. The student letter of complaint was used as a tool in the cross-examination of the Grievor, and there is no suggestion that it formed a part of the selection process. As to the short list, the Selection Committee conducted a review of each of the candidates. As to the Grievor and Mr. Deby, the Committee had the advantage of knowing them both. There is nothing in the authorities to suggest there is anything wrong with knowing one or more of the candidates. Being known may serve as a huge advantage. Being known may be an inescapable fact. In the review of the materials before it, the Selection Committee had the advantage of knowing two of the people they were dealing with. There is nothing in the evidence to suggest that the approach taken in reviewing the CV's was inconsistent with the general academic practice or inconsistent as between the candidates. The review took place in relation to a specialized, highly skilled position, involving an expertise that only academics possess, as to how a CV is read and understood in the academic community. There was no challenge to that raised by the Union. In addition, the assessment was made by the members of the Committee who had the absolute right to exercise their discretion by forming an opinion as to differences in the qualifications and abilities between Mr. Deby, Dr. McKercher and the Grievor. In the case of the Grievor and Mr. Deby, the Selection Committee had the in-house teaching evaluations. They were able to review those and form an opinion about the quality of teaching. The Committee did not seize on a few less flattering evaluations of the Grievor as to his teaching abilities, but was concerned with a pattern in general. The Committee de-emphasized the student comments as being unreliable. Not all students make comments, and some are flippant. The Selection Committee looked to the numerical scoring of the candidates, as they reflected the input of the class as a whole. This was relatively more objective, particularly when viewed as a pattern over time. The Grievor's rating was "okay". This was not a threshold ability case. The Grievor's ratings at the top end, nudged Mr. Deby's ratings at the low end. The "run" of the Grievor was notably below that of Mr. Deby. If anything, after 17 years one would have expected something different. One would expect improvement, with the amount of teaching, some growth and enriched teaching. The Selection Committee did not create the numerical ratings. The students determined that the Grievor was an "okay" teacher. The Selection Committee considered the academic record of performance. They did not apply standards any different from those applied in the academic world. The Committee reviewed a 6 year window as to the quality of journals or conferences, and the Grievor did not "measure up". The 6 year window should have weighed in favour of the Grievor, as Mr. Deby and Dr. McKercher just qualified in their Ph.D.'s. The Grievor had many years experience, but "it" dried up and who knows why. That basis for comparison should have favoured the Grievor, if he had been performing. Ms. Black referred to all the teaching that the Grievor was doing as affecting publication. That was the Grievor's choice, his own predisposition, but it had a consequence in his being measured against the other candidates. There is a linkage between a research program and teaching. The academic world is driven by the search for truth in knowledge. The Grievor wants to teach in that environment, where there is a need to be current and abreast of changes in knowledge. There must be the ability to field student questions, where the answer is not found in a textbook. LING 220 is a gateway course, where the role of teacher is about exciting and inspiring prospective linguistics students, and future scholars. The failure to pursue an active research program has an impact and is directly relevant. For Dr. McKercher, the outsider, the Committee sought a recommendation. That was consistent with the Position Announcement, which stated: "Recommendations will be solicited later if needed". For Dr. McKercher, it was rational, as he was an outsider and unknown to the Committee. The recommendation was sought from the Chair of Linguistics at the University of Victoria, a person in general authority. That was a perfectly reasonable and appropriate choice. The Union points to a mandatory duty to consider the employment file, but ignores the contents of the file as prescribed by Article XIX.A. of the Collective Agreement. The Committee knew the Grievor, that he had taught LING 220 many times and other courses as well. The substantive and meaningful contents of the employment file were as set out in Article XIX.A. that includes "a current Curriculum Vitae if available". It was the Grievor's obligation, and in his application to the Position Announcement, he referred to a CV which he had prepared in 1998. The Committee had all the "student ... evaluations ... normally maintained by the department". There were many student evaluations, they were current and the Committee reviewed them. Dr. McRobbie went to the Selection Committee with a numerical summary of the Grievor's evaluations for LING 220, LING 222 and LING 110 from the fall of 1999 to the fall of 2001. The necessary information, the meaningful content of the Grievor's employment file was reviewed by the Committee. There was no mistake here, of any consequence. The attack on Dr. McRobbie for bias, on the evidence, is nonsensical. What Dr. McRobbie had done was to help the Grievor with the Distance Education project. It was his job and his contract. When he presented the work, she strove to make it better. She provided extensive comments to assist him with revisions; she gave him direction as to an added chapter. While obviously disappointed with the quality of the work done, she understood that it be set aside in this selection, and that is what she did. That is not a case of a person on the Committee having already made a directly related decision against the applicant's interests. Dr. McRobbie was not challenged, in her cross-examination, that she had set aside the Distance Education matter as a consideration. In addition, the evidence of Dr. Munro was that the ranking of the candidates was made separately by Drs. Munro and McRobbie, and then they "compared" their conclusions. As to the other documents, the earlier references and the 1993 evaluation from the Grievor's employment file, both Dr. Munro and Dr. McRobbie testified that they would not have made any difference. They testified following an order for exclusion and separately. In addition, the earlier documents were somewhat dated. In the review of the relevant CV's and the numerical evaluations, the Selection Committee more than met the required standard, and the suggested errors raised by the Union. With the background of the authorities, there is a framework to consider, that:

(i)

The nature of the clause, Article XIV.E.3, has significant ramifications in terms of the standard of review and remedies available.

(ii)

The basis upon which management is entitled to consider and assess candidates.

(iii)

The nature of the work has a direct impact on the measuring of candidates.

(iv)

In the absence of restrictive language in the Collective Agreement, management has a broad discretion to determine what it is looking for in making its selection. Mr. Gilligan-Hackett referred to the following authorities:

 31      In Malaspina University College v. British Columbia Government and Service Employees' Union, [2002] B.C.C.A.A.A. No. 14, Award No. A-013/02 (Burke), at para. 45, in referring to Aps Architectural Precast Structures and Construction and General Workers' Union, Local 602, [1993] B.C.C.A.A.A. No. 196, July 12, 1993 (Kinzie):

A good statement of the appropriate scope of arbitral review in a selection case is set out in that case:


... the particular language of the collective agreement may well affect this question. The opportunity for an arbitration board to scrutinize management judgments will be narrowed by language which expressly accords management a degree of discretion. The example most often cited is a clause under which the assessment of employees skills or qualifications turns upon the "opinion of the employee" see Re District of Maple Ridge and CUPE, Local 622 (1979), 23 L.A.C. (2d) 86 (Hickling) at p. 98. subject to that qualification, it appears that an increasing number of authorities reason, that, in addition to ensuring that the employer has acted reasonably and in good faith, an arbitration board must assess the merits of a promotion decision in order to determine whether the employer has complied with the terms of the collective agreement.

 32      And at para. 51, in referring to Township Transit Services and ATU, [1999] B.C.C.A.A.A. No. 27:

As set out in Township Transit Services Inc., supra:


... management power is to determine the necessary job-related criteria and the weight to be given to each of them. That decision will not normally be reviewed unless the employer acts in bad faith or has chosen qualifications bearing no reasonable relationship to the work...

In conjunction with that is the principle that arbitrators are expected to defer to management with respect to the aspects of the selection process that incorporate subjective and judgmental components as a legitimate part of the process.


And at para. 60 of the Malaspina, (supra) decision:

As in Nechako Stuart Association, supra, the language does not support the interpretation placed upon it by the Union. The language vests discretion in the Employer and provides for a test in which the Employer has the right to determine whether a senior applicant is "equal" to a competing junior applicant with respect to the criteria set out in the provision. That language contemplates an arbitral review in which the question asked is whether the Employer acted reasonably in preferring one applicant over another. While an arbitration board may also assess the merits of the decision to ensure the employer has complied with the collective agreement, some deference to the judgment of management does exist, particularly where the language is inherently subjective.

 33      In Victoria (City) and Canadian Union of Public Employees, Local 50 (Herriott Grievance), [1997] B.C.C.A.A.A. No. 158, Award No. X-39/97 (Bruce), the Arbitrator stated at paras. 92-93:

Before addressing whether the Employer has satisfied this onus, the proper standard of review must be defined. I agree with the Union's submission that the narrow scope of review once defined by arbitrators has been rejected in favour of the standard of correctness. As Arbitrator Germaine says in Re: Board of School Trustees of School District No. 68 (Nanaimo) and CUPE, Local 606, supra:


... it appears an increasing number of authorities reason that, in addition to ensuring that the employer has acted in good faith, an arbitration board must assess the merits of a promotion decision in order to determine whether the employer has complied with the terms of the collective agreement. (p. 181)


There are, however, a number of caveats that accompany the move to a broader scope of review. First, it is not an opportunity for the arbitrator to conduct an independent review of the Employer's findings to determine if she would have come to the same conclusions. The correctness of the decision relates to the Employer's compliance with the collective agreement, whether it has acted reasonably, and followed the proper procedures and criteria in coming to the decision: Re: Health Labour Relations Association, supra p. 51. Second, arbitrators have consistently held that a certain amount of deference is to be accorded to management's judgment in regard to qualifications because they are in the best position to assess the strengths and weaknesses of employees as these relate to the requirements of the job: Re: District of Maple Ridge and CUPE, Local 622 at p. 98-9 and Re: Board of School Trustees of School District No. 68 (Nanaimo) and CUPE, supra p. 181. Third, the scope of review and the ability to scrutinize management's judgments in selection disputes will be dependent upon the specific language of the collective agreement.

See Re Whitecourt-Fox Creek General Hospital District No. 97 and United Nurses of Alberta, Local 149 (1995), 39 L.A.C. (4th) 430 (Smith et al) at pp. 440-441.

 34      In Re Board of School Trustees of School District No. 68 (Nanaimo) and Canadian Union of Public Employees, Local 606 (1985), 19 L.A.C. (3d) 176 (Germaine et al), the Board stated at pp. 180-181:

... The opportunity for an arbitration board to scrutinize management judgments will be narrowed by language which expressly accords management a degree of discretion. The example most often cited is a clause under which the assessment of employee skills or qualifications turns upon the "opinion of the employer": see Re District of Maple Ridge and C.U.P.E., Local 622 (1979), 23 L.A.C. (2d) 86 (Hickling) at p. 98. Subject to that qualification, it appears an increasing number of authorities reason that, in addition to ensuring that the employer has acted in good faith, an arbitration board must assess the merits of a promotion decision in order to determine whether the employer has complied with the terms of the collective agreement. ...

 35      In Re Lennox Industries (Canada) Ltd. and United Steelworkers, Local 7235 (1983), 12 L.A.C. (3d) 241 (Kennedy), the Arbitrator stated at p. 250:

Despite this controversy, in cases where the collective agreement grants the discretion to management to make decisions based on "its opinion" or words to that effect, it is clear that the Great Atlantic & Pacific case, (1976), 76 CLLC para.14,056 at 332, indeed did change nothing. The scope of arbitral review is still whether the company's decision was made in good faith, without discrimination, and was reasonable: Re Raybestos-Manhattan (Canada) Ltd. and U.S.W., Local 5141 (1978), 17 L.A.C. (2d) 351 (Hinnegan); Re Century Electronics Ltd. and Canadian Assoc. of Industrial, Mechanical & Allied Workers, Local 1 (1978), 19 L.A.C. (2d) 105 (MacIntyre); Re University of Toronto, (1979), 24 L.A.C. (2d) 97, supra. As stated in Re British Leaf Tobacco Co. of Canada Ltd. and Canadian Union of Operating Engineers & General Workers (1981), 3 L.A.C. (3d) 235 (Kennedy) at p. 240: "It is implicit in the whole notion of a discretion that there is no uniquely right answer to the issue in respect of which the discretion is conferred."

Having a less exacting standard of review in cases where the collective agreement grants discretion to management means that the board is ensuring that the provisions of the collective agreement are being followed, because in the agreement it has been determined that the company is to be the judge. ...

 36      Mr. Gilligan-Hackett submitted that under Article XIV.E.3 of the Collective Agreement, it was contemplated that the Selection Committee would formulate an "opinion" as to whether a candidate had "better qualifications or abilities" - that management would make a judgment, which is inherently subjective. Accordingly, the scope of arbitral review is limited. Mr. Gilligan-Hackett urged that the requirements of the Collective Agreement had been met. Any alleged errors of the Selection Committee were of no real weight or consequence. The grievance ought to be dismissed. In the alternative, should a violation of the Collective Agreement be found, on the language employed, the only available remedy is to refer the matter back to management with necessary directions. See British Columbia School District No. 18 (Golden) and Golden Teachers' Association, [1996] B.C.C.A.A.A. No. 559, Award No. X233/96 (Bruce), where the Arbitrator stated at para. 77:

Where the test is threshold ability to do the job, and the evidence establishes the grievor meets this standard, arbitrators will normally order the grievor's appointment to the position rather than directing that the selection be done again. In the circumstances of this case, however, I am not convinced this is the appropriate remedy. This is not a threshold ability clause. Article E.1.8(b) involves the exercise of discretion by management based on the principles outlined above. An arbitrator would be reluctant to exercise that discretion on behalf of management except in the clearest case of impropriety or where there is a patently incorrect decision. While the Employer obviously misinterpreted the requirements of Article E.1.8(b), it acted in good faith toward the Grievor throughout the competition. ...

Also refer to Re British Columbia Hydro and Power Authority and International Brotherhood of Electrical Workers, Local 258 (1983), 10 L.A.C. (3d) 56 (Germaine) at p. 70.

 37      Mr. Gilligan-Hackett submitted that where management is vested with the right to formulate an opinion, it would only be in exceptional circumstances that an arbitrator may interfere by substituting a decision, rather than referring the matter back for reconsideration. There are no exceptional circumstances and the context is one of specialized academic employment, qualifications and background.

REPLY OF THE UNION

 38      Ms. Black stressed that the student letter of complaint of January 15, 1999 should in no way be considered as an evaluation. As to remedy, in a matter of bias, it would be inappropriate to send the matter back for reconsideration by management. The prospect of having fellow academics "second guess" their colleagues, is impossible. Here, the job was for a limited term, a semester, and it is gone. The Union lacks confidence that management will "get it right", if it gets to decide the matter again.

ANALYSIS AND CONCLUSION

I.

THE SCOPE OF ARBITRAL REVIEW, OF THE POSITION SELECTION

A.

Generally


(1)

To ensure that the employer has acted reasonably, in good faith, and has complied with the terms of the collective agreement.


See Malaspina University College (supra), para. 45 and Victoria (City) and C.U.P.E. (supra), para. 92. In Re Whitecourt-Fox General Hospital (supra), the Board stated at pp. 440-441:


The scope of arbitral review of a promotion decision by management has been the subject of much debate amongst arbitrators. At the very least, the arbitral jurisprudence makes it clear that management's decision must not be arbitrary, it must not be discriminatory, it must not be unreasonable and it must not have been made in bad faith. Many arbitrators adopt that limited scope of arbitral review as the appropriate role of an arbitrator on the basis it is a "recognition that management is in the best position to assess the requirements of the work place, the effective and efficient operation of its facilities and that it knows and is in the best position to judge the competency and efficiency of its employees: (Re Health Labour Relations Assn. and B.C.N.U (Greyell), (1985) 21 L.A.C. (3d) 114, supra, at p. 121, a case cited by both the employer and the union in this grievance). In addition, however, to that scope of arbitral review, the arbitration panel is satisfied that management must also demonstrate that it has complied with the collective agreement. In saying that, this panel is not suggesting that adoption of a strict correctness test in that analysis. A useful discussion is found in Re Health Labour Relations Assn. of B.C. (Princeton General Hospital) and B.C.N.U. (Hope), (1987), 32 L.A.C. (3d) 35, supra, in respect to the meaning of the test of correctness. Correctness in the context of compliance with the collective agreement does not in itself dictate that an arbitration board has the jurisdiction or the obligation to conduct an independent review of findings made by management to determine if the board would have reached the same conclusion. ...


Rather, the arbitration panel's task is to determine whether or not management applied the criteria set out in the agreement in making its decision and not some other criteria thereby violating the terms of the collective agreement. It is not the task of the arbitration panel to second-guess the employer in respect to those matters that involved the consideration of subjective standards and judgment, which require the application of technical expertise and knowledge related to the specific needs of the employer.


(2)

To ensure that the selection stands the test of honesty and completeness.


See Re Corporation of the Borough of Scarborough (supra), at p. 211:

Arbitrators have looked to the process of choice by which the employer rejected the grievor. This they have tested for honesty and completeness. According to the test of honesty, if the employer's purported judgment under the agreement's criteria for choice was unjustly discriminatory or motivated by bias or malice, arbitrators would find violation. According to the test of completeness, if the employer had ignored relevant factors about the grievor or had taken irrelevancies into account, violation would again be found. An employer following a dishonest, or honest but incomplete, process of choice has not applied the agreement's criteria and has therefore not rejected the grievor on any ground the agreement permits. More, even if the process of choice has survived the tests of honesty and completeness, arbitrators have looked to the result to assess its correctness under the test of reason.


(3)

To ensure that the employer has chosen qualifications bearing reasonably to the position.


See Malaspina University College (supra), at para. 51.


(4)

To deal with the clear case of impropriety or a patently incorrect decision.


See British Columbia School District No. 18 (Golden) (supra), at para. 7.

       B.    Narrowed By Language in the Collective Agreement

(1)

That accords the employer a degree of discretion.


See Malaspina University College (supra), at para. 45; Nechako Stuart Assn. (supra), at pp. 68-69; and Re Board of School Trustees of School District No. 68 (Nanaimo) (supra), at p. 181.


(2)

That incorporates a subjective or judgmental component, or allows for the opinion of the employer.


See Malaspina University College (supra), at paras. 51-52; and Re Corporation of District of Maple Ridge (supra), at p. 98.


C.

Deference to the Employer's Judgment


See Re Board of School Trustees of School District No. 68 (Nanaimo) (supra), at p. 181; Victoria (City) and C.U.P.E. (supra), at para. 92; and Whitecourt-Fox Creek General Hospital (supra), at p. 440.


D.

Where Selection is Expressly Reserved to the Employer in the Collective Agreement


See British Columbia Hydro and Power Authority (supra), where the Arbitrator stated at p. 70: "... final responsibility for selection shall rest with the Employer."


II PROVISIONS OF THE COLLECTIVE AGREEMENT

 39      It is useful to summarize the applicable provisions of the Collective Agreement:

-

Article XIV.A. provides a definition of Sessional Instructor, as distinct from part-time and full-time Faculty.

-

Article XIV.B. sets forth the qualifications for a Sessional Instructor.

-

Article XIV.E.2 provides that the University shall have the sole right to select a candidate.

-

Article XIV.E.3 allows the University to form an opinion that a candidate has better qualifications or abilities.

-

Article XIX.A. provides for inclusions in an employment file.

-

Articles XIX.B. and C. provide for exclusions from an employment file.

-

Article XIX.E. provides for the identification of all locations of an employment file.

-

Article XIX.F. requires that the employment file be considered in a selection.

       III.  VIOLATIONS OF THE COLLECTIVE AGREEMENT

 40      Although Ms. Parmar was present as a member of the Selection Committee to guide the other members of the Committee in matters concerning the Collective Agreement, there is no evidence that she in fact performed that function. Aside from bringing a copy of the Collective Agreement to the meeting, all indications are to the contrary.

1.   The Contents of the Employment File

 41      I am not satisfied on the evidence adduced that all of the contents of the employment files of the Grievor and Mr. Deby were before the Selection Committee at the time of the selection. This is a clear violation of Article XIX.F. of the Collective Agreement. It is not a mere matter of process, but a requirement for fairness and completeness. I do not accept the Employer's suggestion that in view of what was identified as being before the Committee, either at the selection or dealt with at the hearing, the breach was of little or no consequence. In addition, I do not regard Article XIX.A. of the Collective Agreement as delineating all of the contents of what an employment file shall include. The evidence of Ms. Stoddard makes clear that other materials may well be included in such files, and Article XIX.E. provides that they may be in various locations. I note that it was precisely this same violation of the Collective Agreement that was found to occur in Simon Fraser University (supra). That there be a recurrence, is difficult to fathom.

2.   The Priority of the Grievor Under Article XIV.E.3

 42      There was no suggestion that any candidate in the selection had a right of first refusal to the position. The fact of the matter was that the Grievor had taught LING 220 for more than 2 semesters and his last appointment occurred within the last 3 semesters. The Grievor therefore had a priority under Article XIV.E.3. Perhaps there was recognition of that fact in that the Grievor was on the short list. In my view, that priority provided for a presumption as to the Grievor's qualifications and abilities to teach LING 220. It may be a matter of semantics, but I was not comforted by the testimony of Dr. McRobbie that "priority was not applicable in this competition". Dr. Munro made no mention of any priority. In my view, there was a failure to acknowledge the requirements of Article XIV.E.3, even though the Committee was entitled to form an "opinion" as to "better qualifications or abilities".

3.   Qualifications to Teach LING 220

 43      The Selection Committee, as best described by Dr. Munro, embarked upon a review of the qualifications of the 3 short listed candidates. That entailed a consideration of common conventions understood by academics that included scholarship, research, publication and presentation at conferences. Neither Dr. Munro nor Dr. McRobbie acknowledged the qualifications set forth in Article XIV.B. of the Collective Agreement. The Position Announcement provided "A Ph.D. or ABD in Linguistics is the preferred qualification ..." In reviewing the qualifications of the candidates, the Committee engaged in a manner similar to that of assessing a Faculty member for the purposes of a salary review. In my view, that was inappropriate and a violation of the Collective Agreement. Both Dr. Munro and Dr. McRobbie acknowledged that their approach was problematic:

(a)

Dr. Munro stated that in the consideration of the common conventions, there was a problem too, as it was tough to impose such criteria on Sessional Instructors.

(b)

Dr. McRobbie stated that the Committee was just doing what it had always done, with the complication of the Collective Agreement to be considered.

 44      Dr. Munro did not explain how the Committee dealt with the "problem". Dr. McRobbie did not explain how the Committee addressed the "complication". Under cross-examination, Dr. Munro stated that he did not view Sessional Instructor appointments to be the same as Faculty appointments. I conclude that in the assessment of the qualifications of the 3 candidates, the Selection Committee failed to have proper regard to the position under review, namely, one of Sessional Instructor as defined in Article XIV.A.1 and for which qualifications are prescribed in Article XIV.B. The Selection Committee thereby violated the terms of the Collective Agreement in assessing the qualifications of the candidates to teach LING 220.

4.   Abilities to Teach LING 220

 45      In the teaching evaluations of the 3 candidates by the Selection Committee, the ranking was Mr. Deby, the Grievor and then Dr. McKercher. The assessment of the Selection Committee, on the review of the numerical outcomes of the student evaluations for the Grievor, was one of mediocre performance. This was on the basis of the 6 year window that preceded the selection. The comparison of the Grievor to candidate Mr. Deby was on the basis that the latter had taught LING 260. The Grievor had taught LING 220 over 20 times. The Selection Committee seems to have ignored the Grievor's teaching load in recent years and his overall contribution to the Department. They failed to recognize the Grievor's position of priority under Article XIV.E.3 with the inherent presumption that he had the abilities required to teach LING 220. The Committee appeared to be swayed in the selection on the basis of a gateway course, scholarship and a desire to select the best recruits. Article XIV.B. of the Collective Agreement provides that "she/he shall also provide evidence of teaching ability commensurate with the responsibility of teaching the assigned credit course and of carrying out the duties related to the effective conduct of that course." The Position Announcement provided that "Applicants should specify the areas in which they are qualified ..." In this instance, the course was LING 220. LING 260 was described to be a comparable course in terms of class size and level within the Department. There was some support for an opinion that Mr. Deby had the required abilities to teach LING 220, but he had never taught the course. The selection of Dr. McKercher is another matter. Aside from presenting his CV, Dr. McKercher provided no evidence of his teaching ability commensurate with the responsibility of his teaching LING 220. He was an outsider with no teaching experience with the University. There was no evidence as to the nature and scope of the courses he had taught in the Department of Linguistics at the University of Victoria, other than a listing of courses in his CV. He did not provide any evidence of student or other evaluations of the courses he had taught. The focus of the Selection Committee was on Dr. McKercher's qualifications and two matters related to his ability to teach. He had won an award as a Teaching Assistant at Stanford University and there was the verbal recommendation of Dr. Lukari. The basis for that recommendation was not determined, although Dr. McRobbie had described the course to be taught. Dr. Munro was unaware of any basis, other than it was obtained from a trustworthy source. Dr. McRobbie stated that the recommendation was needed as "support" for the appointment, and to be on the "safe side", Dr. McKercher was given the downtown appointment for LING 220. That is where Dr. Munro said that they would "try him out". Against that kind of uncertainty, or hope, was to be weighed the presumed present ability of the Grievor to teach LING 220. Dr. Munro stated that nothing in the teaching evaluation changed the ranking of the 3 candidates according to scholarship, where Dr. McKercher ranked highest. As pointed out by Mr. Gilligan-Hackett in his opening address, Article XIV.E.3 of the Collective Agreement is cast in the disjunctive of better qualifications or abilities. Dr. McKercher's superior qualifications justified his appointment. The teaching award, his teaching experience at the University of Victoria, plus the recommendation enabled the determination that he possessed the threshold or sufficient abilities to teach LING 220. They would try him out and, to be on the safe side, he was appointed to the less demanding position of LING 220 (Evening at Harbour Centre). I view the basis of the selection of McKercher on his abilities to teach LING 220 as being tenuous, and largely dependent upon the committee's determination that he had better qualifications or scholarship.

IV.  GOOD FAITH OR BIAS

 46      In Article XIX.A. of the Collective Agreement, it is provided that the employment file shall include "a current curriculum vitae if available". Dr. Munro stressed that it was the obligation of the individual to ensure that the CV on file was current. He (Dr. Munro) did so for salary evaluation purposes. Dr. McRobbie went to the Selection Committee meeting with the knowledge that the Grievor's CV was not current. Dr. McRobbie took time to prepare a numerical summary of student teaching evaluations of the Grievor. Dr. McRobbie took time to place a telephone call to Dr. Lukari to obtain a recommendation for Dr. McKercher. It would have been a simple matter of courtesy to suggest to the Grievor, a colleague, that he make "available" an updated CV to the file. The fact that she did not is suggestive of a predisposition of the matter in her mind. Dr. Munro reached the conclusion that the Grievor had not updated his CV since 1998, and that did not speak well of him. With respect to Dr. McRobbie's experience with the Grievor in the Distance Education project, in the selection, she stated that "we tried not to consider it, but it was a factor" and "it was mentioned ... a general thing in the background". Aside from the fact that the Distance Education project concerned LING 220, I accept the submission that it was irrelevant to the selection process. It appears that Dr. McRobbie, in all candour, was unable to disabuse her mind of that experience and it most probably influenced her assessment of the Grievor. The Grievor was thereby deprived of "an honest appraisal within the parameters of the collective agreement", see Re University of British Columbia (supra). Mr. Gilligan-Hackett urged that the counter-balance was the presence of Dr. Munro on the Committee. I am not convinced of that proposition, particularly when Dr. McRobbie and Dr. Munro testified that the Distance Education experience was discussed at the Selection Committee meeting. Dr. Munro could not recall whether he took it into account, in assessing the Grievor's ability to teach LING 220.

V.   REMEDY

 47      Based on my conclusions in this matter, I set aside the selections made by the Committee for the summer semester of 2002 for LING 220 (Day on Campus) and for LING 220 (Evening at Harbour Centre). Article XIV.E.2 of the Collective Agreement provides that "... the University shall have the sole right to determine which candidate, if any, shall be appointed." The parties have agreed that that is a prerogative of management and it would be wrong for me to make that judgment, at least in these circumstances: see British Columbia Hydro and Power Authority (supra). Despite the reservations expressed by Ms. Black, I refer the matter back to the University to reselect the candidate for each course offering in LING 220. The selection process shall be confined to the 3 candidates on the short list and on the basis of the facts as they existed in March 2002, including the 2002 CV of the Grievor as applicable. As part of the reselection, the University will be obliged to consider carefully the meaning and application of "qualifications" and "abilities" of Sessional Instructors in Article XIV. of the Collective Agreement, as required for teaching LING 220. I direct that in the reselection, Dr. McRobbie and Dr. Munro not be involved. I retain jurisdiction to render any further directions, should the need arise, or there be any difficulty in the implementation of this Award. Should the Grievor be a successful candidate in the reselection, I retain jurisdiction to determine what compensation or other relief should be afforded to the Grievor, in the event that the parties are unable to agree in respect thereto. To this extent, the grievance is allowed.

 48      IT IS SO AWARDED.

QL UPDATE:  20030626
qp/e/nc/qlmmm/qlhcs