Ontario Public Service Employees Union (Knapp) v. The Crown in Right of Ontario (Ministry of Finance), 2000 CanLII 20480

GSB # 2720/96

OPSEU # 97C093

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Knapp)

Grievor

• and -

The Crown in Right of Ontario

(Ministry of Finance)

Employer

BEFORE Randi H. Abramsky Vice Chair

FOR THE Mary MacKinnon

GRIEVOR Counsel Bode & MacKinnon Barristers & Solicitors

FOR THE Lucy Siraco

EMPLOYER Counsel Legal Services Branch Management Board Secretariat

HEARING February 15, 1999 April 27, 1999 September 16, 1999 November 26, 1999

WRITTEN SUBMISSIONS December 3, 23 & 31, 1999

AWARD

The grievor, Sharon Knapp, alleges that the Employer acted in bad faith by denying her the position of Data Processing Clerk pursuant to a job competition that took place in October 1996. The Union submits that the competition was designed to favour one of the successful candidates, Rose Anne Kelly.

Facts

The Taxation Data Centre (TDC) within the Ministry of Finance processes all of the payments related to the provincial retail sales tax, corporate sales tax, land tax, motor fuel tax, plus a number of other tax statutes, and certain license payments. It is responsible for the deposit of approximately fifty percent of the province’s cash flow. It also processes information for other ministries. Annually, the Centre processes between 7 to 8 million documents in relation to approximately fourteen tax statutes and works under numerous deadlines.

On October 4, 1996, a competition for two positions as a Data Processing Clerk within the Taxation Data Centre was posted. The posting stated as follows:

DATA PROCESSING CLERK (2)

Office Administration 4

Schedule 3,7

$15.23 - $16.58 per hour

The Ministry of Finance, Taxation Data Centre, requires a team member to operate a number of interactive computer terminals utilizing a wide variety of methods and programs to accomplish the transfer of data from source documents. You will utilize search, replace, delete, correction and update criteria to meet standards of quality and productivity.

LOCATION: Oshawa

QUALIFICATIONS: Demonstrated ability in the operation of interactive computer terminals (standard/nonstandard and intelligent/non-intelligent); ability to operate at a keyboarding standard of 10,000 keystrokes an hour; ability to complete assignments within a schedule of deadlines; general knowledge of office routines, procedures and computer processing activities.

Please submit application/resume by October 21, 11996 to FILE NUMBER FIN: 328-96, Ministry of Finance, Human Resources Branch, P.O. Box 627, 33 King Street West, Oshawa, Ontario L1H 8H5.

AREA OF SEARCH: This competition is restricted to Ministry of Finance classified civil servants working at, or whose principal residence is within 40 km of 33 King Street West, Oshawa. Ministry of Finance unclassified employees, GO Temps, and secondees employed during the posting period are also eligible to apply provided they are currently working at, or their principal residence is within 40 km of 33 King Street West, Oshawa.

The grievor, at the time of the competition, was a GO-Temp employee who worked as a Data Entry Clerk with the Ministry of Finance. She had worked with the Ministry for various temporary periods beginning in October 1993. In all, at the time of the competition she had worked approximately 64 weeks for the Ministry, or 16 months. On October 8, 1996, she applied for this competition. In all, the Ministry received twenty-two applications.

To determine which candidates would be interviewed, the Ministry required all applicants to take a keying test. Supervisor, Data Capture Unit, Mike Harrison, testified that he wanted to test the applicants’ ability to key data from images on the computer screen, as opposed to paper documents, since the Ministry had been moving to that approach for a number of years. According to Heather Gowans, Manager, Revenue and Data Processing, by July 1995, 60% of the work in the unit involved keying from images and the goal was to increase that to 100%. One of the other supervisors in the Ministry had created a test for keying from images. Harrison obtained it, tested it, and thought that it would enable the Ministry to test the applicants’ ability to key from images, including their speed and accuracy.

At the time, the test that had been developed was either an alpha (i.e., letters) or numeric (i.e., numbers) test, but not a combination of the two. According to Manager Gowans, 70% of the work of a Data Entry Clerk was strictly numeric, and 30% was alphanumeric. The grievor testified that 60% of the work was numeric and 40% was alphanumeric. She could do both, although she acknowledged that in the weeks leading up to the key test, her keying was strictly numeric. In Harrison’s view, the percentage of strictly numeric work was 80 to 90%. Accordingly, he decided that the keying test should be a numeric test, not an alpha one. The tests were administered over a three-day period from November 24 - 27, 1996.

The decision was also made to run the test on the Banctec system. The Banctec keyboard is a PC-type keyboard, with a row of numbers across the keyboard, above the letters, as well as a reverse-number keypad on the right-hand side. It differs from the Unisys keyboard, which was also used in the TDC, in that it did not also have numbers superimposed or imbedded in the letter keys. Thus, the Unisys keyboard had numbers in three places: across the top above the letter keys, a reverse key pad on the right hand side, and numbers imbedded in the letter keys. The Banctec system did not have the numbers imbedded in the letter keys.

The Unisys system had been the “standard” keyboard for a number of years but in July 1995, the Banctec system was introduced and the Unisys system was to be eventually phased out. At the time of the competition in October 1996, both the Banctec and the Unisys systems were in use and Unisys continued to be used until 1999. The job posting required applicants to be able to operate “standard/non-standard” terminals.

The Ministry’s decision to use a strictly numeric keying test, on the Banctec system, are two areas of contention raised by the Union. The grievor testified that the two successful candidates had been using the Banctec system prior to the test whereas she had never worked on the Banctec system. She testified that it was only after the keying test, in fact, the day afterward, that she was assigned to use the Banctec. She also stated that her request to be assigned to the Banctec before the keying test had been refused by her supervisor Mike Harrison, that she was never advised that the test would be on the Banctec system and that no information was given, in advance, about the scoring of the test. She was only advised that a score of 10,000 keystrokes was required to ensure an interview.

The evidence showed that one of the successful candidate, Laurel Aird-Khan, had not worked for the Ministry since October 4, 1996 and thus had not worked on the Banctec for more than seven weeks before the keying test. The other successful candidate, Roseanne Kelly, had not worked in Data Entry since May 31, 1996 and thus the grievor had no knowledge of what system, if any, Kelly had been using during the weeks leading up to the keying test. Further, the grievor had only seen Kelly use the Banctec system “once.”

More importantly, in the grievor’s resume, which was submitted on October 8, 1996, approximately seven weeks before the keying test took place, the grievor wrote that she had experience on both “Unisys and Banctec,” and that she “[o]perate[d] Banctec Terminals for scan line repair and verification of information for ITAs, EHT, etc.” During her interview for the position, which took place approximately two weeks after the keying test, she also stated that she had experience with Banctec. The discrepancy between her testimony and her resume about her experience on the Banctec system was not explained or explored at the hearing. She testified that there were also other applicants, like her, who worked only on the Unisys system.

According to Harrison, once the posting occurred, some employees asked him what the test would be on and he informed “all of the staff” it would be on the Banctec system. He stated that some employees expressed concern about that and he reminded them that they could use the reverse keypad on the Unisys system to practice, that he would not check their keystrokes per hour rate and that they could practice that way during office hours. He testified that the grievor was part of the group of employees to whom he told this, although he acknowledged that it was “possible” that she was not. He further stated that some employees had asked to be switched to Banctec and that he would not do so since they were needed where they were assigned. In his view, it was up to the employee to gain experience by using the reverse keypad and they did not have to be assigned to the Banctec system to do that. Alternatively, it was his view that employees could also practice on a calculator which uses a reverse keypad.

Sharon Bové, a Data Processing Clerk who, at the time was also a GO-Temp employee in the Taxation Data Centre, competed in the October 1996 competition. She testified that she was informed through Harrison and the grapevine that the keying test would be on the Banctec system and that 10,000 keystrokes per hour was needed to obtain an interview. Further, she testified that she had learned to use a reverse keypad by practicing on a calculator.

The grievor denied being informed or even being aware that the test would be on the Banctec system, although she did ask to work on it in preparation for the test. She also denied that she was advised that she could “practice” using the keypad on the Unisys machine, or that her keystrokes per hour would not be monitored. She stated that she was not paid to practice. In her view, moreover, the feel and touch of the keys on the Unisys was different than on the Banctec, and would be different on a calculator, although she had never used the reverse keypad on the Unisys.

In terms of asking Harrison to work on the Banctec, the grievor initially testified, on examination-in-chief, that prior to the competition she had asked her supervisor if she could work on a Banctec keyboard before the keying test and that he responded “no”, with no reason given. She also testified to that on cross-examination, stating that she asked him, “if the test were to be on Banctec, was there any chance that she could use it,” to which he responded “no.” The grievor, however, was also called to testify in reply and on cross-examination, she stated that she did not ask, prior to the test, to work on Banctec, that others had asked Harrison this and were told “no.” She added that she “may have asked Cindy [the Group Leader] if she could practice on the Banctec”, and was told “no”, that things were too busy.

The grievor’s key test was held at approximately 3:00 p.m. on November 27, 1996. That is near the end of her work day and she stated that she was “tired” when she took the test. She acknowledged, however, that she could have, but did not, adjust her hours that day. Nine other applicants also took the test at that time. Keying tests had also been given on November 25 and November 26 during the lunch hour. In each case, applicants were given five minutes to warm up and get comfortable. The test results, both as to keystrokes and accuracy, were shown on screen immediately to the applicants. Neither the grievor nor any of the other applicants questioned the accuracy of the results of the test.

The grievor’s test showed 11,450 keystrokes/hour with an accuracy of 99.53, for a total of 58 points. The scoring, out of a possibility of 70 points, was based on the following standards:

95% accuracy 25 points

96% 27

97% 29

98% 31

99% 33

100% 35

10,000 ks/hr + 23 points

11,000 ks/hr + 25

12,000 ks/hr + 27

13,000 ks/hr + 29

14,000 ks/hr + 31

15,000 ks/hr + 33

16,000 ks/hr + 35

Roseanne Kelly had 14,106 keystrokes/hour with an accuracy of 99.71%, for a score of 64. Laurel Aird-Khan had 14,262 keystrokes/hour with an accuracy of 100%, for a score of 66.

Harrison and Gowans testified that employees were not advised of this scoring schedule in advance of the test. During a similar competition in 1995, employees were advised about how the test would be scored immediately before the test and, as a result, they received complaints that the information increased the applicants’ nervousness. Consequently, for the October 1996 competition, scoring information was not disclosed. In Harrison’s view, the Ministry “learned from the mistake”.

It is unclear whether the same scoring standards were used in both competitions. Harrison testified that the original weighting system used in the 1996 competition (up to 25 points for accuracy and 45 for speed) unduly weighted speed over accuracy. Accordingly, the points assigned were changed to give equal weight to speed and accuracy. Under the revised scoring, the grievor’s key test score was significantly closer to Kelly and Aird-Khan than it otherwise would have been.

There were a few other differences between the 1995 competition and the 1996 one. In 1995, the applicants were tested on either the Unisys or Banctec system. The keying test was an alphanumeric test, and it was manually graded for speed and accuracy.

The grievor participated in the 1995 competition and on the keying test tied for first, but she came in second, overall, after the interview. As a result, after that competition, she was told she should brush up on the interview portion and she reviewed the interview questions in preparation for her interview in the October 1996 competition.

Both Harrison and Gowans testified that the 10,000 keystrokes was a “minimum”, and a requirement of the job, but that the testing was aimed at getting the best data entry operator they could. Out of 100 points in all, a total of 70 was allocated to the keying test and 30 to the interview. The was based on the fact that the vast majority of the job involved keying information but that other interpersonal skills were required as well. The grievor, however, was under the impression, from speaking with other employees, that the keying test would be used solely to determine who would be interviewed – in other words, once an applicant reached 10,000 keystrokes/hour, anything more would be irrelevant, and the outcome of the competition would be based on the interview. She acknowledged, however, that keying speed and accuracy are important elements of the Data Entry Clerk position.

The grievor did very well in her interview. Indeed, she did better than anyone else, receiving full marks for each question for a total of 30 points. Her combined score (58 + 30) was 88, which placed here third overall, behind Roseanne Kelly with 91 points and Laurel Aird-Khan with 89 points.

The Ministry’s practice was to use testing and interviews to determine the outcome of a job competition. No weight was given to prior performance in the position. A reference for the grievor, which was completed by Mike Harrison, was quite positive, as were the references for Kelly and Aird-Khan. Harrison did not recall telling the grievor’s husband that the grievor was the best data operator in the department. He stated that if he said so, he was only being polite.

The grievor’s reference states, in part, that she “keys at aprox 12,000 ks/hr and over a 7.25 hr day her productivity does drop off slightly but so would anyone.” At the hearing, she submitted a handwritten record of her keystrokes per hour showing that in December 1996, she keyed an average of 15,214 keystrokes/hour on the Unisys system, while in March 1997, she was keying between 13,720 and 29,160 keystrokes/hour on the Banctec system.

In terms of favoritism towards Kelly, the evidence showed that in December 1996, the staff collected money for a maternity gift for Kelly and asked Manager Gowans to present it to her. She did so and stated to those assembled that Kelly was a valuable employee in the department. According to the grievor, Gowans also said that she was “sure that they would see her back.” Gowans did not recall this. She testified that she did not contribute money to the gift and her only role was presenting the gift to Kelly. She stated that she has been asked around thirty times to do that over the years. Harrison also confirmed this practice in the department.

The Union also presented the testimony of Yvonne Pinder, a Data Processing Clerk. She testified that on January 4, 1997, she had a conversation with Harrison during which he told her that he had been called into Human Resources for a meeting with Gowans, Lorraine Kelly and Pat Simmons and that during the meeting he was asked to destroy information about the keying tests so that if questions arose, he would have no information, that only Human Resources would have that information. This concerned him, she stated, because Gowans had wanted Kelly to be slotted into one of the positions. She also testified that on January 6, 1997, Harrison told her that if she mentioned their earlier conversation to anyone, he would deny it occurred. She stated that Harrison and she were friendly and that he confided in her.

Pinder testified that she did not report any of this until July 1998, when she met with the Assistant Deputy Minister to complain about the “poisoned” work environment in the department. She stated that the information Harrison spoke to her about, she “could not keep it to myself” any longer. From January 1997 through July 1998, she was “contemplating what to do” and was “waiting for the right time.”

Harrison denied that the conversations alleged to have occurred in January 1997 took place or that he was asked to destroy the keying information. The composite scores were provided to the Union initially and during the hearing, Harrison found his initial notes about the keying results. He found them with some old papers in his desk when he cleared it out. No one questioned the accuracy of the results of the test at the time and the disks with the actual tests on them were not retained.

The grievor’s GO-Temp assignment in the Taxation Data Centre ended in April 1997. At around that time, the government ceased to operate GO-Temp, which supplied the temporary staffing needs of the provincial government, and instead used private-sector agencies to fill their temporary requirements. Harrison testified that once the switch was made to the private sector, he could not request specific employees. Under GO-Temp, Harrison could request individual employees, and in the past, he would ask the grievor’s husband, who worked in the same building, if the grievor was available to take temporary assignments. Under the new system, he would advise the Administrative Group of his requirements, i.e., five data entry operators who are able to key a minimum of 10,000 keystrokes/hour, with an accuracy rate of 99%, for a period of three weeks. That information was then passed on to Human Resources who would contact the private sector agencies who would then send employees to the TDC.

Harrison testified, however, that there was one time, although he could not recall when, that the agencies could not provide a sufficient number of staff and Human Resources asked him if he knew anyone who would fit the department’s needs. He had a list of the former GO-Temps, with their phone numbers, and he was instructed to call them and ask them to report to Manpower, one of the temporary agencies. He testified that he did so and called the grievor’s home but received no answer. He stated that he tried again later the same day, but that Michelle Doucette, a former GO-Temp employee, told him that the grievor had a full-time job with a company. He stated that he did not recall the grievor having an answering machine and stated that he did not leave messages for those he called because he was in a rush. He stated that there was a second time that he called Michelle Doucette and that he did so at her request.

The grievor testified that she has an answering machine and that she did not receive a call from Harrison. She stated that she did not receive temporary outside work until July 1997 and that in April 1998, she was hired full-time by a company. She testified that had the Ministry called her, she would have accepted the work because of the hours and the fact that her husband worked in the same building.

The Ministry hired a number of employees on contract in the Fall of 1997, including a number of applicants for the October 1996 competition. Of the 22 applicants, only Knapp and three or four others did not thereafter work for the Ministry through a temporary agency or on contract.

Positions of the Parties.

The Union submits that the GSB has jurisdiction to decide this grievance even though the grievor, at the time, was a GO-Temp employee. It submits that management acted pursuant to Article 2, Management Rights, and that in exercising those rights it has an obligation to act in good faith, i.e., in a manner which is not arbitrary, discriminatory or in bad faith. In support of its contention, the Union cites to OPSEU (McIntosh) and Ministry of Government Services (1993), GSB No. 3027/92 (Dissanayake); OPSEU(Pietroban) and Ministry of Government Services (1997), GSB No. 2257/95 (Mikus).

Here, in its view, the government conducted its hiring process in a manner that was arbitrary, discriminatory and in bad faith. The Union asserts that the key test was designed in a way that was different from prior tests. Specifically, employees were not given a choice of keyboards. They had to use the Banctec system, and the test was strictly a numeric one, rather than alphanumeric. In its view, the grievor was prejudiced by these changes.

That prejudice, in its submission, was exacerbated by the refusal of supervisor Harrison to allow the grievor access to the Banctec system or to allow her to practice. It submits that given the deadlines and pressures in the department at the time, the grievor would not have been permitted to practice at work, as Harrison asserted, and that no one was in fact told that they could practice regardless of keystroke statistics. It argues that the suggestion that the grievor could have practiced on a calculator is absurd. Further, the Union submits that the Ministry demonstrated bad faith by the fact that the day after the key test, the grievor was assigned to the Banctec system

The Union also asserts that the grievor was disadvantaged by management’s failure to advise the applicants that there would be bonus marks for speed and accuracy. Accordingly, the grievor concentrated on preparing for the interview portion as advised to do after the 1995 competition.

The Union further contends that the timing of the grievor’s testing, at 3:30 p.m., after a full work day, prejudiced the grievor. It submits that she had already been keying for a full day on a standard keyboard, then had to switch to a reverse keyboard with only five minutes to warm up. Nevertheless, she exceeded the 10,000 keystrokes/per hour requirement, with a 99.53% accuracy rate. She then aced the interview and should have been awarded the position. However, it submits that because bonus points were given on the keying test, rather than the interview being the deciding factor, she lost the competition. In the Union’s view, the rules had been changed to favour management’s preferred candidate.

The evidence showed, it submits, that Kelly had a better relationship than others with the area manager. In December 1996, in the midst of the competition process, Manager Gowans told the staff that Kelly was a valuable employee and that she was “sure that they would see her back.” In its view, that statement creates an impression that the competition was predisposed to favour Kelly’s return. It argues that the type of test selected – a strictly numeric test, on Banctec, further favoured Kelly. In its view, management designed the test in a way to ensure Kelly’s success

The Union contends that the Ministry’s bad faith is further demonstrated by the testimony of Yvonne Pinder and fact that the grievor, the only applicant who filed a grievance, was the only individual not rehired in some capacity by the Ministry.

The Union further contends that the competition was arbitrary in that it was not designed to find the best person for the job. The Ministry tested only numeric keying when alphanumeric is regularly required. It gave no weight to satisfactory performance in the job.

The Union further notes a number of other flaws in the competition – the failure to contact references, the consensus scoring, possible calculation errors, the change in the scoring weights. It submits that these flaws are important because the grievor’s total score was so close to the score of the second successful incumbent. In the Union’s view, the evidence was clear that the grievor could have performed the job and but for the flaws in the process, would have been the successful candidate.

The Employer contends that the board lacks jurisdiction to decide this matter because the grievor was a GO-Temp employee with no Article 6 rights. In its submission, a GO-Temp employee has no right to grieve any aspect of a job competition, including an allegation that the competition was conducted in bad faith. Accordingly, it argues that the grievance should be dismissed on this basis.

On the merits, the Employer contends that there was no proof of bad faith, as alleged. It contends that the grievor knew, or ought to have known, that the keying test would be on the Banctec keyboard and that the allegation that she did not know is without merit. It submits that there was ample notice, through the posting, that the ability to work on both a “standard” and “nonstandard” keyboard was required and that Supervisor Harrison informed staff that the test would be on the Banctec. It submits that there is no other valid explanation for the grievor’s asserted request to either practice on or be switched to the Banctec system.

The Ministry further submits that its decision to use the Banctec for the keying test was entirely reasonable given the fact that the TDC was phasing out the Unisys system and at least 60% of the work was on the Banctec system. It further submits that the grievor, in fact, had prior experience on the Banctec and could have practiced, on work time or her own time, using a reverse keypad on the Unisys system or a calculator. It also contends that even if the grievor had only worked on the Unisys system, other applicants had only worked on Unisys as well and argues that it cannot have treated the grievor arbitrarily or in bad faith when she was treated in the same fashion as other operators.

For the same reason, it submits that the timing of the grievor’s test does not evidence bad faith since she was not singled out. It also points out that she had sufficient notice of the test to alter her work schedule that day but chose not to do so.

The Ministry further asserts that there was insufficient evidence that utilizing a numeric test on the Banctec system gave an unfair advantage to either Kelly or Aird-Khanna since neither of them had used the system in the weeks before the test. Nor was there any evidence that either had been keying numeric data only during that time, as had the grievor.

In the Ministry’s view, it was reasonable to use numeric rather than alphanumeric test since the majority of the work in the unit was numeric and, at the time, no alphanumeric test available. It contends that the test provided a fair evaluation of all of the applicants.

The Ministry asserts that its decision to give bonus points for speed and accuracy as well as its decision not to inform applicants about the scoring details was reasonable It submits that the goal was to hire the best possible candidates and that applicants who key at 14,00 or 15,000 keystrokes per hour should be scored higher than someone who keys at 10,000 keystrokes per hour. It submits that it did not inform applicants about the scoring because when it had done so in the past, it received complaints that it made the applicants nervous. The Ministry points out that none of the applicants were informed about the scoring in advance, not just the grievor, and that there was no evidence that the grievor was not informed to prevent her from being successful in the competiton, nor any evidence that telling would have increased her score. Further, the changes in scoring were fully explained, were reasonable and benefited the grievor.

Finally, it submits that Pinder was not a credible witness and that her testimony should not be credited credible. It argues that bad faith in the competition was not established by the grievor's lack of assignments afterward. It points out that she, in fact, received one such assignment and thereafter obtained full-time work elsewhere.

Decision

I conclude that under the specific facts of this case, I need not decide the jurisdictional issue presented because assuming, arguendo, that such jurisdiction exists, the evidence here falls significantly short of establishing bad faith.

As stated in OPSEU (Bousquet) and Ministry of Natural Resources (1991),GSB No. 541/90 et al. (Gorsky) at pp. 63-64:

All of the cases emphasize that in cases involving the exercise of managerial discretion, the Board will hesitate to substitute its view for that of the employer as long as certain minimum tests are met. These include the requirement that the decision be a genuine one related to the management of the undertaking and not a disguised means of achieving impermissible ends based on discrimination or other grounds unrelated to the making of genuine management decisions. The facts considered in making the decision must be relevant to legitimate government purposes. Also, in making its decision management, provided it has acted in good faith, as above described, need not be correct.

Thus, in this case, the decision about the testing and competition must be a “genuine one related to the management of the undertaking” and not a “disguised means of achieving impermissible ends…” The “facts considered in making the decision must be relevant to legitimate government purposes.”

The evidence demonstrates that the decision to use a numeric test on the Banctec system was a reasonable decision based on the legitimate business needs of the department. The TDC was phasing out the Unisys system and moving more and more to the Banctec. Under these circumstances, testing on the Banctec was reasonable. Likewise, given the high volume of strictly numeric work in the department, using a numeric test was reasonable. Alphanumeric work was a significantly smaller proportion of the work in the department. Further, at the time, the testing choice was between a numeric one and an alpha one; there was no alphanumeric test available. Given this situation, the decision to use a numeric keying test on the Banctec system was a reasonable one, based on legitimate business considerations.

I also find the grievor’s assertion that she had never worked on the Banctec until the day after the key test to be questionable in light of her claim, on her resume, that she had experience on the Banctec. Both assertions cannot be true. Given the nature of the work in the department, I find it more probable than not that she had, as her resume indicated, some prior experience on the Banctec, albeit perhaps not recent experience.

There is also insufficient evidence that the successful applicants, Kelly and Aird-Khan, were given an improper advantage over the grievor by the choice of the test. Kelly had not worked in the department since May, 1996 and Aird-Khan had not worked there since October 4, 1996. Thus, there was no evidence that either of them had done numeric keying on the Banctec system in the weeks leading up to the test, potentially giving them an advantage over the grievor. Nor was there any evidence that the design of the test was decided on the basis of the grievor’s personal experience on Unisys, or that of Kelly or Aird-Khan. Similarly, there were a number of other applicants, in addition to the grievor, who had primarily Unisys experience.

The evidence also establishes, on the balance of probabilities, that the Grievor knew that the test was going to be on the Banctec system, or ought to have known. Harrison testified that he informed the staff of this and Bové confirmed that it was generally known in the department that the test would be on the Banctec system. There is no other reasonable explanation for why the grievor would have asked Harrison to switch her to that system or to practice on it if she thought that she have the option of using the Unisys system as she had in the past.

Also, the evidence supports the view that the grievor could have practiced using the reverse keypad on the Unisys system. Despite keying all day on the scan edit system, which is similar to Unisys, and having no recent experience or, for the sake of argument, any experience on Banctec, she was able to key at over 11,000 keystrokes/hour with only five minutes warm-up. That is a rate which exceeds the departmental minimum. Thus, regardless of whether Harrison authorized it or not, the grievor could have practiced using the reverse key pad, on work time, without negatively impacting her keystroke standing. The 11,000 + keystrokes/hour rate is very close to the 12,000 keystroke/hour rate found in her reference and above the minimum required in the TDC.

Nor, in my view, is the timing of the grievor’s keying test suspect. Numerous others took the test at the same time as the grievor and there was no evidence that the timing was selected to disadvantage her. Further, given that the grievor had advanced notice of the timing of the test, she could have altered her work schedule that day, but she chose not to do so.

There was also no credible evidence of favoritism towards Kelly, as alleged. The manager’s remarks when presenting the maternity gift to Kelly were clearly a polite courtesy and do not suggest that the competition was skewed to favour her. Manager Gowans testified that she had made such presentations and remarks more than thirty times to employees over the years. She did not buy the gift for Kelly, or contribute to it; she simply presented it at the employees’ request.

As to the assertions of Pinder, I conclude that even if they are true (and I make no finding on that), it does not establish that the competition was designed or implemented in bad faith. Further, the fact that the competition results, including the applicants’ scores, were provided to the Union and, although a bit late, the supervisor’s notes from the keying test were provided, demonstrate that the information relevant to the test and competition was not destroyed.

Finally, ill-will towards the grievor in terms of the October 1996 competition is not evidenced by the lack of assignments to her after April 1997. Once GO-Temp was eliminated, individuals were not requested by name but obtained assignments through the private temporary agencies. In the one exception to that, Harrison testified that he called the grievor as well but did not leave a message. That is possible. Nor is the fact that the grievor was not given a contract position in the Fall of 1997 indicative of bad faith. By that time the grievor had full-time work elsewhere, and the Ministry was aware of that.

In reaching the conclusion that bad faith toward the grievor did not pervade the job competition, I also rely on the fact that the grievor did extremely well on the interview portion of the competition. She was the only candidate who received full marks on each question. In fact, she did very well in the competition, coming in third. Surely, if the Ministry was motivated by bad faith, one would not expect to see that result. The evidence also showed that the grievor was generally well regarded,her reference from Harrison was quite positive overall, and she had been repeatedly rehired by the department.

All in all, therefore, I conclude that the decisions made about the design and implementation of the competition were “genuine one[s] related to the management of the undertaking and not a disguised means of achieving impermissible ends…” OPSEU (Bousquet) and Ministry of Natural Resources, supra. Further, the “facts considered in making the decision” were “relevant to legitimate government purposes.” The grievor did well in the competition, coming in third overall. I have no doubt that she could have performed the job in question. But there was simply insufficient evidence to establish that the competition was conducted in bad faith and the grievance must therefore be dismissed.

Conclusion

There was insufficient evidence of bad faith in the design or implementation of the October 1996 competition. Accordingly, the grievance is dismissed.

Dated at Toronto, this 9th day of March, 2000.