GSB #1402/99
OPSEU#99E232
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Sunga)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of the Environment)
Employer
BEFORE Daniel A. Harris Vice Chair
FOR THE Don Martin
GRIEVOR Grievance Officer
Ontario Public Service Employees Union
FOR THE Lisa Compagnone, Counsel
EMPLOYER Legal Services Branch
Ministry of Community and Social Services
HEARING February 20, 2001.
DECISION
The grievor, Estrellita Sunga, was declared surplus to the needs of the Ministry of the Environment. At that time she unsuccessfully applied for the position of Application Processor and filed two grievances. Those grievances were settled and this matter arises out of the settlement. As part of the settlement of those two grievances, Ms. Sunga was given the opportunity to be interviewed for the job and be awarded the position if she should score 70 out of 110 points on the interview. She did not reach that threshold. She says that the interview was not fair and comes before the Board now for a review of that competition. At this stage, the union has closed its case and agreed that the Board should determine whether it has made out a prima facie case without putting the employer to its election as to whether or not it will call evidence.
THE FACTS:
The background to this matter is a reorganization of the Approvals and Assessment Branches of the Ministry. Under the prior structure the grievor worked as an Information and Receivables Clerk. In that capacity she would receive applications for Certificates of Approval. She reviewed them for accuracy and completeness, ensured that the appropriate fees had been paid, coded and logged the application for tracking and assignment purposes and sent them on to the co-ordinator for the responsible section (Noise, Air, Water, Sewage). The Section Co-ordinator would then assign the application to an engineer for review. The grievor said that she was required to know whether an application was covered by any legislated or regulated exception from the requirement to obtain a Certificate of Approval. If it was, she would refer the file to the manager who would deal with it directly.
The reorganization empowered the new position of Application Processor with authority to deal with applications in their entirety. That is, they receive the application, review it, recommend action and approve or reject the application. The employer said that as a result the new position requires much greater technical expertise, which the grievor lacks.
Here the Union says that the re-run competition for the position of Application Processor was fatally flawed in two respects. First, one of the questions was given a disproportionately high value. Second, the interviewers did not accurately record the grievor’s answers, thereby failing to accurately reflect her actual knowledge. The grievor testified that she worked hard to prepare for the interview and was surprised that she had not been successful.
The Board is being asked to rule on whether or not the Union has made out a prima facie case. It has not done so, even when considered on a best case basis. The following chart sets out the scored questions, their value and the scores awarded by the three interviewers:
Scores Received
QUESTIONS
Value
#1
#2
#3
- This position requires knowledge of: (1) environmental legislation, (2) the environmental approvals processes, (3) technical knowledge with respect to pollution control and equipment, industrial and municipal processes, and various types of industrial equipment. Please tell us, how your skills and knowledge meet each of these skills requirement?
20
9 2/3
8
7
- A representative of a major city, such as Hamilton, calls you and asks you what the environmental approvals and processes are required for developing a new landfill site to serve his/her community. Please outline your response to the client clearly indicating the Act and approval or process required under that Act.
20
7 ½
8
7
- What, if any, are the EBR public participation requirements for the following:
a) new baghouse
b) new paint spray booth
c) new diesel generator
d) new water mains
e) new waster transfer station
10
4
5
4
- Could you describe to us primary, secondary, and tertiary treatment, which are means of treating sanitary sewage?
10
1
1
0
- Please list three typical sources of contaminant emissions into the atmosphere from an automobile manufacturing facility.
10
5 1/3
5 ½
5
- This is a scenario question. You have received 15 applications to process from your supervisor over the last 3 days. You just received another 5 today. One of the clients from the batch of 5 that you just received today calls you. He says that he is in a hurry and needs to have his application reviewed and approved within the week. He indicates that this proposal will result in 30 new jobs in Ontario, and is worth over $5 million. Because of the net benefit to Ontario, he is refusing to pay the fees required for the application. If his application is not approved in a week, he says that he will be calling the Premier. How would you respond?
10
9
9
9
- You have received an application under section 52 OWRA for construction of watermains. Please indicate the type of information required for the application to be considered complete.
10
8
8
7
- Oral Communications Skills
20
10
10
10
TOTALS
110
55
55
49
AVG. SCORE
53
The first question allocated 6 2/3 marks for each of the three knowledge areas addressed. The grievor achieved the following scores:
Knowledge Area INTERVIEWER
1 2 3
environmental legislation 3 3 1
environmental approvals process 6 2/3 5 6
technical knowledge 0 0 0
The grievor testified with the aid of notes she made immediately following the interview. She said that the recorded answers did not reflect what she said at the interview regarding her knowledge of the legislation nor of all the steps in the application process.
However, it was clear from her evidence, as well as the recorded answers, that she did not demonstrate any “technical knowledge with respect to pollution control and equipment, industrial and municipal processes and various types of industrial equipment.” Accordingly, she properly did not receive any points under that heading. Had she received perfect scores on the other two headings she would have received an additional 3 2/3, 5 1/3 and 6 1/3, points from the 1st, 2nd, and 3rd interviewers respectively.
As to question two, the grievor testified that the only item missing from the recorded answers was that she had mentioned the need for public participation in such a project. The points to be awarded for this question were allocated as follows:
Answer:
a) Environmental Assessment Act (2.5 marks)
2.5 marks
submission of the Terms of Reference
Individual Environmental Assessment
b) Environmental Protection Act (2.5 marks)
2.5 marks
Certificate of Approval for a Waste Disposal – landfill site
Certificate of Approval (Air) (i.e. for landfill gas flare)
c) Ontario Water Resources Act (2.5 marks)
2.5 marks
- Certificate of Approval for industrial sewage (i.e. for a leachate collection system)
d) Environmental Bill of Rights (2.5 marks)
2.5 marks
- EBR requirements of Certificates of approval (Public participation)
The grievor made no mention of the Ontario Water Resources Act at all, nor did she refer to the Environmental Bill of Rights. Accordingly, her best result would be to allow her full marks for the Environmental Assessment Act and the Environmental Protection Act and 2.5 marks for referring to the need for public participation. That result would increase her score by 5, 4 ½ and 5 ½ marks respectively.
The expected answer to question 3 is as follows:
Answer:
a) a minimum of 30 days is required on the EBR Registry for public comment (2 marks)
b) a minimum of 30 days is required on the EBR Registry for public comment (2 marks)
c) none (2 marks)
d) none (2 marks)
e) a minimum of 30 days on the EBR Registry plus some other type of public participation such as advising the neighbours, information sessions, newspaper ads, etc. (2 marks)
The grievor got full marks on a) and b). She testified that she did not know the answer to c) or d). Her answer to e) included that there was a requirement for a public hearing, which is wrong. She was scored as follows:
Answers Interviewer
1 2 3
a 2 2 2
b 2 2 2 c 0 0 0 d 0 0 0 e 0 1 0
Her best improvement is an additional mark from each of Interviewers #1 and #3 for part e) of the question.
As to Question 4, the union objected to the weight given to this question. There was no allegation from the grievor that the answers were incorrectly recorded nor that the mark given was inappropriate. I am unable to conclude that on balance this question is disproportionately weighted. The treatment of sanitary waste is clearly within the mandate of the Ministry and intricately bound up in the Certificate of Approval process. This question is testing one of the underlying, fundamental knowledge requirements of the position. It is worth only 9% of the overall total. Accordingly the grievor could not increase her score on this question even on a best case scenario.
As to question 5, no objection was raised to the marks awarded or the recorded answers.
As to question 6, the grievor received nine out of ten marks from each interviewer. A key response looked for was that the supervisor was to be involved in such a problem only in extreme circumstances. The grievor’s answer included the involvement of her supervisor as a matter of course. I would not interfere with that mark. However, on a best case basis, the grievor would have received an extra mark from each interviewer.
As to question 7, the grievor took no exception to the marks awarded nor the answers recorded. She said the marks were fairly awarded.
Question 8, calls for an assessment of the grievor’s oral communication skills. Each interviewer awarded ten out of a possible twenty marks. The interviewer’s each grounded their marks and comments as to how they arrived at their marks in their previous observations relating to the other questions. On its face there can be no reason to interfere at this stage with the marks given.
In the result, the grievor, on a best case scenario, might have increased her marks by 10 2/3, 11 and 14 ¾ for totals of 65 2/3, 66 and 61 ¾ from interviewers 1, 2, and 3 respectively. On a best case scenario, her average score could not have exceeded 65. The threshold for success was 70 marks. Accordingly, the grievor failed to meet the threshold requirement and is not qualified for the position.
The complaint that the employer has failed to abide by the terms of the settlement is dismissed.
Dated at Toronto, this 21st day of March, 2001.