GSB# 2003-0694, 2003-0695
UNION# 2003-0329-0007, 2003-0329-0008
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(MacLennan)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Health and Long-Term Care)
Employer
BEFORE
Daniel Harris
Vice-Chair
FOR THE UNION
John Brewin
Ryder, Wright, Blair & Doyle
Barristers and Solicitors
FOR THE EMPLOYER
Janice Campbell
Counsel
Management Board Secretariat
HEARING
May 4 & June 2, 2004.
Decision
This is a job competition grievance filed on behalf of Margaret MacLennan. Ms. MacLennan applied for the classified position of Photocopy/Mail Clerk (1) with the Ministry of Health and Long Term Care at the Mental Health Centre, Penetanguishene. Although she outscored all other applicants by a considerable margin, she was disqualified because the employer concluded that she must have had advance knowledge of the interview questions and preferred answers. Further, her unclassified contract was not renewed. The union grieves Ms. MacLennan’s disqualification from the job competition and the failure to renew her unclassified contract as unjust. The successful candidate in the job competition was given notice of these proceedings but chose not to attend.
The Union agreed to proceed with its evidence first. It called the grievor, her supervisor, Ed Dorion, and the Local Union President, Martha McDonald.
The grievor started working at the Mental Health Centre as a part-time unclassified employee in October 2001. She worked under Ed Dorian’s direction; he was a bargaining unit supervisor. Seemingly, the incumbent of the Photocopy/Mail Clerk position was often absent and the grievor often filled in for that position. Indeed, she worked essentially full-time in the position for approximately six months prior to the job competition run in May 2003 to fill the position permanently. Prior to starting with the Ontario Public Service, the grievor was a contract letter carrier with Canada Post for eight years. Her route included the Mental Health Centre.
The grievor dearly wanted to win the competition for the mailroom position. She testified that she studied hard for the competition by using the employer’s policy manuals, internet sources and asking fellow employees what to expect at the interview.
Boris Poredos was the Assistant Administrator, Hospital Services, and was responsible for the job competition. His evidence was largely consistent with a summary document he prepared after the competition. Although lengthy, it is a convenient summary of his evidence and reads as follows:
M. McLennan Competition Grievances
Background Information:
The Mental Health Center Penetanguishene has employed Ms. McLennan since October 1, 2001 on a part time irregularly scheduled contract basis. She provided back up to a number of positions in the Stores/Shipping/Receiving/Mailroom area on a call in basis. The majority of this part-time work was in the role of Photocopy/Mailroom clerk position. Her work performance was satisfactory and there have been no attendance or reliability concerns identified.
Competition Information:
Position: Photocopy/Mailroom Clerk OAS0-4
Competition closed: April 11, 2003
Applications received: 309
Applicants chosen for Interviews: 6
Ms. McLennan was one of the applicants chosen for interview.
Interview Panel:
Boris Poredos, Assistant Administrator Hospital Services (Manager)
Catherine Duquette, Manager Housekeeping/Laundry Linen (Manager)
Ed Dorion, Group Leader/Stores/Shipping/Receiving/Mailroom (Technical Advisor)
All interview panel members were consulted and participated in the development of the questions, preferred responses, written assignments and marking schemes.
Interview consisted of:
Four practical written assignments related to four of the six selection criteria
Sixteen individual questions related to four of the six selection criteria
Ms. McLennan’s Oral Interview:
Interviews for this competition were held on Wednesday, May 7th, 2003 and Thursday, May 8th, 2003. Ms. McLennan’s interview was scheduled and held at 0900 hrs on the second day of interviews. Practical and written assignments followed immediately after the oral interview. I should note that in this interview we did not provide candidates with a copy of the oral interview questions for review prior to the interview.
During the oral interview it became apparent to me that Ms. McLennan had prior knowledge of not only the interview questions but also the preferred responses. I felts this was for the following reasons:
Responses were inordinately concise
Responses were restricted to the prepared preferred responses
In many cases terminology and phrasing used matched the prepared preferred responses
On one occasion the subsequent question was answered before it was asked
One question in particular asked about the functions of a customs broker, the responses given were as listed in the preferred responses and in the order listed
Throughout the interview, virtually no non-scoring information was provided
Ms. McLennan’ overall score was 90% and her score in the verbal portion of the interview was 94.5%.
I have been employed in the Ontario Public Service for approximately 17 years. Sixteen of those I have spent in supervisory and management roles. During this period I have been involved in numerous job competitions including those within my domain of responsibility, assisting other managers and assisting other ministries and provincial government organizations with their competitions. In these competitions I have seen candidates who have done extremely well. I know there would be examples of candidates who scored as well as Ms. McLennan did, on the oral portion of this competition. However, there was a significant inconsistency in Ms. McLennan's interview that I could simply not ignore when combined with the other minor inconsistencies. Candidates who perform very well on interviews provide extensive amounts of information. Including information that can be related to the preferred responses. In Ms. McLennan's interview this was not the case. All responses were very concise and virtually no non-scoring information was provided. I will concede that it can and will be argued that some of the questions in this interview were clearly eliciting a concise response. However, in those questions where a normal response would include some more description or expansion on the precise answer, none was provided.
After the oral interview was completed and the regular opportunity for candidate questions was afforded and completed the candidate left the room. Ms. Duquettes’ reaction to this interview was evident and we both expressed our serious concerns out loud. Ms. Duquette was visibly shaken by the experience and asked to leave the room to compose herself.
We completed the remainder of the interviews as planned and scheduled.
After the interviews were completed Ms. Duquette and I discussed our individual concerns regarding Ms. McLennan's interview. I considered the situation for some time and consulted with Human Resources.
Summary:
Any one of the concerns I have raised regarding Ms. McLennan's interview could be explained away individually, however, collectively they tip the balance of probabilities towards the conclusion that Ms. McLennan had prior knowledge of the interview questions and preferred responses. On this basis it was my decision as chair of the selection board to disqualify Ms. McLennan from the competition and award the job to the second place candidate.
On May 23rd, 2003, Jeff Miller, Human Resources Consultant and I, met with Ms. McDonald to advise her of the situation and my decision related to it. Immediately following this meeting we met with Ed Dorion to inform him that we had selected a successful candidate, that it was not Ms. McLennan and that Ms. McLennan's contract would not be renewed.
We subsequently met with Ms. McLennan and Ms. McDonald to notify Ms. McLennan of my decision regarding the competition and my rationale for this decision. I also informed her that we would not be renewing her contract.
As set out in his summary, Mr. Poredos concluded that the grievor had prior knowledge of the interview questions and preferred answers. He first expressed those concerns to the other panel members at the conclusion of the grievor’s interview. It should be noted that Mr. Dorion participated as a technical advisor. Because he was a bargaining unit member, his input was restricted to answering technical questions relating to the job requirements. Accordingly, his opinion on the grievor’s purported familiarity with the questions and preferred responses was neither sought nor offered. Ms. Duquette did not testify in these proceedings. Accordingly, there is no direct evidence of if, or why, she was upset by the grievor’s interview.
Mr. Poredos admitted in his evidence that he did not formally investigate his concerns. He limited his inquiries to confirming with his administrative assistant and with Catherine Duquette, the other manager on the interview panel, that the questions and answers had been kept secure prior to the interviews. He said he spoke to human resources consultants approximately six times and to the Mental Health Centre Administrator, George Kytayko at least three times. Mr. Kytayko contradicted Mr. Poredos on this point. He said that he only recalled meeting with Mr. Poredos once. He simply told Mr. Poredos and Ms. Duquette to follow up their concerns with human resources staff. Approximately one week later Mr. Kytoyko called the human resources staff to ensure that Mr. Poredos had contacted them for advice. The thrust of Mr. Kyatayko’s evidence was that he left the disposition of this matter in Mr. Poredos’s hands, after having heard the concerns raised, as summarized in the document set out above.
It is most surprising that Mr. Poredos did not fully discuss his concerns with Mr. Dorion, the grievor’s supervisor and technical advisor to the selection panel, nor did he ask the grievor for any explanation she could provide prior to the meeting on May 23, 2003 when she was advised that she was being disqualified. It can only by concluded that he made no serious investigation of his concerns. Indeed, his evidence was that there was nothing to investigate because it was the interview itself that comprised the facts of the matter.
Mr. Poredos reiterated a number of times that his concerns could be explained away on a question by question analysis of the interview. He said that it was the overall effect that raised his suspicions. He is quite right that a consideration of each of the questions individually exonerates the grievor. None the less he maintained throughout his evidence that the combined effect led him to correctly conclude the grievor somehow had prior knowledge of the questions and preferred responses in such circumstances as should disqualify her. Given his evidence that he believed the questions and answers remained secure prior to the interview there is no comprehendible basis upon which to rest his conclusion that the grievor had an unfair advantage.
I turn now to a consideration of the questions asked and the answers given by the grievor at the job competition interview. Mr. Poredos agreed that question one was a question that any candidate might expect. It reads as follows:
Question 1:
Please outline any relevant education and office administration experience you will bring to this position
Clearly, question one called for a recital of the candidate’s work experience. The grievor had been a letter carrier for eight years and had done the job for which she was competing on a full-time basis for six months. She could only be expected to score well on that question.
The remaining questions were equally predictable.
It is useful to review the job position in order to appreciate just how predictable Mr. Poredos’s subsequent questions were. The qualifications for the positions are set out on the posting as follows:
Qualifications:
Knowledge of office procedures to route mail, maintain filing systems and order office supplies; Knowledge of operation of computerized photocopier and ability to perform minor repairs; Knowledge of postal and customs regulations/procedures and courier services in order to select the most efficient means of shipping; Knowledge of WHMIS legislation to ensure the safe handling and storage of regulated materials; Functional arithmetic skills to calculate invoices and tally photocopier counts; Communication skills to explain procedures and regulations, answer inquiries and complete forms.
The clause part of the qualifications clearly and directly relates to question two which is as follows:
Question 2:
Please describe the major difference between computerized photocopier operations and standard photocopiers.
In his cross-examination Mr. Poredos agreed that the grievor’s answers to question 2 were not restricted to the items set out in the preferred answer, the order of her answers was also different and the language used was different. Mr. Poredos seems to have been particularly troubled that the grievor used the phrase “digital imaging,” a phrase that is also found in the preferred response, to describe computerized photocopying, yet he never asked anyone after the interview if it was a common phrase. He did say the phrase came up when he discussed the questions with Mr. Dorion prior to the interviews and he grudgingly conceded that the grievor might have used the term on the basis of her own independent knowledge. I take notice of the fact that this is a ubiquitous term of art that encompasses the digital capturing and printing of images – including what might in the past have been simply called photocopying. Mr. Poredos unfairly, and without investigation, unreasonably and arbitrarily, concluded that the grievor’s use of a common modern term indicated she had untoward prior knowledge of the questions and preferred answers.
The next question asked at the interview was a multi-part question which canvassed the candidate’s knowledge of Canadian postal and customs regulations; that is, the third part of the qualifications set out on the job posting. Mr. Poredos conceded that someone who had worked in the mail room for six months would know postal rates but thought they might not know the actual dimensions of a standard envelope. He did not know that a chart was hung in the mailroom displaying these dimensions. Many of the questions required straightforward answers that ought to be known by someone who was a letter carrier for eight years and held the job being competed for during the previous six months. It is most instructive to examine the answer that troubled Mr. Poredos the greatest. He often mentioned that he was struck by the fact that the grievor answered a question before it was asked. Those questions and preferred answers are as follows:
Questions:
g) On packages received from the USA, what value in Canadian dollars can you receive without paying duty or tax?
h) Are there any exceptions to this rule?
Preferred Responses:
g) If someone mails you an item worth $20 CAN or less, you don’t have to pay duty, the GST or HST, or any PST on the item
h) Some items do not qualify for the $20 CAN exemption: tobacco, books, periodicals, magazines, alcoholic beverages, goods ordered through a Canadian post office box or intermediary
The grievor answered question g) by giving both preferred responses g) and h). The grievor’s uncontradicted evidence was that she used the Canada Customs website as a study aid. Mr. Poredos testified that he used the Canada Customs website to develop these very questions and answers. He agreed that the following excerpt from the Canada Customs website was either what he used or was similar:
- If someone mails you an item worth $20 CAN or less, you don’t have to pay duty, the GST or HST, or any PST on the item (see D8-2-2 for details).
Some items do not qualify for the $20 CAN exemption:
tobacco
books
periodicals
magazines
alcoholic beverages
goods ordered through a Canadian post office box or intermediary
It is readily apparent that the preferred responses are identical to the wording found on the publicly accessible website that the grievor legitimately used as a study aid. The grievor certainly did have access to this answer prior to the interview by dint of her diligent study. Had Mr. Poredos asked her about this directly, he might have been disabused of its seeming importance. She simply gave the whole answer to the question, rather than breaking it down into two questions and answers as Mr. Poredos had done. Further, her answers were not identical to the preferred answers. On reflection, the fact that she gave both parts of the answer unprompted is an indication that it is more likely than not that she did not know the structure of Mr. Poredos’s preferred answers. Had she modeled her answer to fit his preferred answers she would have held off on the second part of the answer with the foreknowledge that there would be a second question. In any event, on the evidence, her answer was not a verbatim recital of the preferred responses; she missed some details and stated some of them differently.
Another question that aroused Mr. Poredos’s suspicions related to the functions of a customs broker. As set out in his summary, he believed her “responses were as listed in the preferred responses and in the order listed.” Looking at Mr. Poredos’s notes and the notes of Cathy Duquette, that allegation is simply untrue. The grievor volunteered the name of the employer’s customs broker and responded otherwise in a fashion that used different language in a different order than the preferred response. Further, the grievor testified that well before the competition had been announced she received a call, in the course of doing her job, from a courier service asking which customs broker the employer used. She didn’t know what a customs broker was so she went to the Canada Customs website, learned what was involved and put some of what she learned into the employer’s policy manual.
Other questions and preferred answers relating to Canada Custom’s requirements were also lifted word for word by Mr. Poredos from its web site, the same site the grievor used as a study aid, a resource available to all candidates.
The final question asked at the interview related to the Workplace Hazardous Material Information System. Anyone who had read the Job Posting would have been alerted to the relevance of this question and have expected to be asked about this topic. Indeed, the grievor testified that all of the co-workers she turned to for advice prior to the interview told her to expect a question on WHMIS. Mr. Poredos testified that he only put check marks on his work sheets beside the preferred answers because the answers given by the grievor were “verbatim”. Unfortunately for his reliability as a witness, Ms. Duquette did take notes which indicate that the grievor did not give verbatim answers as compared to the preferred response. Her answer missed one expected response, nor were her responses in the same order. She used different language and added a gratuitous observation. In any event, given that the grievor did not get full marks from either Mr. Poredos or Ms. Duquette, it is not possible that her answer was a verbatim recital of the preferred answer.
Although I have not set out Mr. Dorion’s evidence in any detail in these reasons, it should be noted that there were conflicts between his evidence and that of Mr. Poredos, particularly with respect to the extent of Mr. Dorion’s participation in formulating the questions. One point in particular is pertinent. Mr. Dorion testified that he told Mr. Poredos that the questions as formulated by him would favour someone who had done the job. Mr. Poredos testified that he told Mr. Dorion that they must guard against having questions that would penalize outsiders. I specifically accept Mr. Dorion’s account. He warned Mr. Poredos, but the warning fell on deaf ears. Where Mr. Poredos’s evidence conflicts with that of any other witness, I reject it.
Mr. Poredos tenaciously held on to his overall impression that the grievor must have had an unfair advantage by virtue of having previously seen the questions and preferred responses. The evidence establishes that the questions and preferred answers were kept secure, and there is no suggestion at all as to how the grievor might have obtained them.
Mr. Poredos also disagreed with the evidence of Mr. Dorion that he told Mr. Dorion that he “had a gut reaction” that the grievor had seen the questions and preferred responses. Whether or not Mr. Poredos actually used the phrase, it is exactly what he relied on. It was Mr. Poredos’s gut reaction that denied the grievor the security of a classified position as a mail clerk. This was an arbitrary exercise of management’s rights. The fact is, the questions asked were a simple test, indeed simplistic, for a minor position in the organization. The grievor was extremely well qualified, had extensive direct experience and studied very hard from publicly available materials that were the very materials used by Mr. Poredos to create the questions and preferred answers. Had he investigated what had happened, he most likely would not have discredited the grievor by disqualifying her. His failure to fully investigate by taking up his concerns with Mr. Dorion and the grievor before making up his mind was unreasonable and arbitrary. It denied the grievor any modicum of procedural fairness.
I have carefully considered all of the submissions made on behalf of the parties both as to the facts and the applicable law. As set out above, I find that there is no basis upon which it can be concluded that the grievor had actual, advance knowledge of the questions and preferred responses administered during the interview, although she certainly knew most of the answers by virtue of diligent study. Accordingly, there is no basis upon which she was properly disqualified from the competition. I do accept Mr. Poredos’s evidence that had she not been disqualified, the grievor would have been declared the successful candidate. Accordingly, I reject the employer’s submission that the appropriate remedy would be an order that the competition be re-run. The grievor was the hands-down winner and was arbitrarily and unreasonably kept from her success. Accordingly, I order that she forthwith be confirmed and employed in the position and made whole for any monetary losses effective from and after May 23, 2003.
In view of my decision on Ms. MacLennan’s improper disqualification from the job competition, it is unnecessary to consider the failure to renew the unclassified contract.
Finally, the union also claimed damages for pain and suffering as a result of what it described as the reckless and wonton disregard exhibited by the employer in this matter. Accepting, without deciding, that these circumstances sound in damages for pain, suffering and loss of reputation, that matter is remitted back to the parties for their consideration as to its proper disposition and may be brought back before me for determination if they are unable to reach an accord. I remain seised to deal with any issues arising out of the implementation of this decision.
Dated at Toronto this 16th day of June, 2004.