GSB# 2003-3124

UNION# 2003-0502-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Naczynski)

Union

• and -

The Crown in Right of Ontario (Ministry of Economic Development and Trade)

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

FOR THE UNION

Elizabeth Nurse Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Rosalyn Principe and George Parris Counsel Ministry of Government Services

HEARING

April 6, July 28, August 24 & 26, October 17, November 24, & 29, 2005. Additional written submissions December 9 & 20, 2005.

Decision

On October 1, 2003, the grievor, Ms. Julia Naczynski filed a grievance contesting the outcome of a job competition in the (then) Ministry of Enterprise, Opportunity and Innovation, for the position of Communications Officer. It is the Union’s contention that the position should have been awarded to Ms. Naczynski, as the senior applicant, under Article 6 of the collective agreement. It is also the Union’s position that the competition was fatally flawed. The incumbent, Mr. Neil Trotter, was provided notice of this proceeding and participated in the hearing. The other successful applicant, Ms. Miranda Hawkins, has since left the government and her position was eliminated. She did not attend the hearing.

Facts

1. Ms. Naczynski’s Work Experience

Ms. Naczynski began her career as a general assignment reporter for The Chatham Daily News, and after six years there, became a general assignment reporter for the London Free Press for a one-year period. She then, for two years, worked for CIBC as a Writer/Editor, in the Internal Communications unit, Public Relations division, working on the bank’s internal newsmagazine. Ms. Naczynski has a Bachelor of Journalism degree from Carleton University.

Ms. Naczynski began working for the government in 1988 as a Senior Editor, in Employee Communications with the Ministry of Community and Social Services. That position, like the position involved in the disputed competition, was classified as an Information Officer 3 (I.O.3). It involved researching and writing the Ministry’s internal staff newsletter, entitled “Dialogue”. She would also assign free-lance writers and did photography as well as participate, with senior staff, on the editorial content of the publication. Dialogue was produced approximately ten times per year and, according to Ms. Naczynski, was always “within budget” and met “deadlines.” In addition, she served as the Plain Language Coordinator and trainer for the Ministry, an initiative which encouraged the use of plain, understandable language in government communications. She would also write a column called “Today’s Child.” She also did some communications/strategic planning and project coordination.

Her position was declared redundant in 1998 and she was redeployed to an I.O. 3 position in the Ministry of Health. Her title there was “Correspondence Writer”, in the Corporate Correspondence Unit. In that position, her job was to research, write and edit responses for senior officials to sign to letters and emails from the public, constituents and various stakeholders. The job involved liaising with administrative and senior staff to provide an appropriate response.

In November 2000, she applied for and won a job competition for the position of Senior Writer in the Communications Branch of the Ministry of Energy, Science and Technology, which is also an I.O.3 position. Of all of the positions that Ms. Naczynski held, this one was the most similar to the job involved in the disputed competition. She was part of a small team that supported communications for the science and technology division of the Ministry. She testified that in this position, she “did the majority of the writing for the Division’s communications” – including news releases, backgrounders, media advisories, fact sheets, and speeches. She would also assist with correspondence and represent the Ministry at trade shows. Both her resume and her testimony state that she did communications planning and project coordination, although in neither case did she give any concrete examples. She also performed an editing function in this job, reworking annual reports, business plans and policy reports.

In June 2002, however, her division in the Ministry of Energy, Science and Technology was merged into the Ministry of Enterprise, Opportunity and Technology. It was her understanding, at the time, that she would continue the same work in the new Ministry. Instead, after a few months, she was placed into the Correspondence and Editorial Unit. In that position, her work was the same as her position with the Ministry of Health. On a few occasions, however, she asked for and received other assignments such as writing for Ontario Business Report, editing articles, writing a speech, as well as coordinating an announcement regarding funding for McMaster University. In this last activity, Ms. Naczynski wrote a news release, media advisory, backgrounder and remarks for the Minister to make. Unfortunately, the event was cancelled and it did not take place.

According to her manager at the time, Assistant Director of Communications Allison Barr, and Director of Communications Brent Kearse, the merger had been unexpected and it took management some time to place all of the new employees. The Ministry, at the time, had a need for a correspondence writer and it was their determination, based on Ms. Naczynski’s background, that Ms. Naczynski could fulfill this role. It was not, however, what Ms. Naczynski wanted to do. She felt that the position did not fully utilize her skills, experience or abilities and that, because she had transferred into the Ministry, management did not fully understand her capabilities.

To that end, Ms. Naczynski arranged to meet privately with both Mr. Kearse and Ms. Barr. She did so in late April, early May 2003, and put on, what she described, as a “dog and pony” show, presenting her skills and abilities and samples of her work. Each meeting lasted approximately thirty minutes. In her view, the meeting with Ms. Barr was “a good meeting.” The same was not true of her meeting with Mr. Kearse. She testified that at the end of that meeting, Mr. Kearse told her that he had heard quite a bit about her, that he had heard that she was “aggressive”, a “bull in a china shop” and “not a team player.” She stated that she was taken aback by his comments and found it “very difficult to speak.” He then “brushed aside” his comments and told her that that was all “water under the bridge”, that she was starting over in a new job.

Mr. Kearse acknowledged making statements along those lines – that he had “heard” these comments about Ms. Naczynski - and stated that he did so to provide her with constructive feedback. It was not his personal view of her. He stated that he had little interaction with her, prior to the interview, and had an open mind during the interview.

2. Neil Trotter

At the time of his application for the position, Mr. Trotter had worked in communications for approximately three years. He first worked as a Communications Associate for Yorkton Securities, an independent investment bank and brokerage, working in media relations and promotion of the company’s research analysts and market commentators. In February 2001, he went to Scotiabank as a Public Affairs Consultant, where he did media relations, issues management, financial reporting and communications support. Both in his testimony, his interview and his resume, he provided detailed examples of his work and accomplishments. He subsequently became acting Senior Consultant, Public Affairs, where his responsibilities increased.

Prior to his work in Communications, Mr. Trotter worked as a Research Analyst at Yorkton Securities where he worked as part of a team preparing equity research and reports. He received a Bachelor of Arts in Urban Development from the Leeds Metropolitan University in England, and completed the Canadian Securities Course and was half-way through a Certificate in Public Relations from Ryerson University.

3. Miranda Hawkins

Based on her resume, at the time of her application, Ms. Hawkins was a Writer, I.O. 3, with the Ministry of Culture, Tourism and Recreation. She began working for the government in July 2002, as an I.O.3 in Tour Logistics and Media Relations. In that capacity, she was a member of a team that developed processes for event planning, management and implementation, involving 47 events in an eight week period. She also assisted in managing the Minister’s contact with media and event organizers. In September 2002, she received an acting position as Culture Correspondence Writer, writing Ministry correspondence and liaised with program areas to research content. In January 2003, she became a Writer, writing speeches and remarks for the Minister and senior officials, and wrote news releases “complying with Ministry messaging.”

Prior to her work with the government, Ms. Hawkins worked for six years, freelance, in various communication areas – developing key messaging through press releases, marketing materials and websites for small and large companies, non-profit organizations and the Ontario government. She also wrote articles of interest for various publications. She co-authored a book, and directed three episodes for a television production. For three years before that, she was a producer for CBC Television, Midday and Midday News, did Visual Research for the National Magazine and Midday, and was Program Co-ordinator for Midday

Ms. Hawkins received a Bachelor of Arts from Queen’s University, and took a CBC writing course.

4. The Job Competition

In April 2003, the Ministry posted for two openings for an Information Officer in the Public Affairs branch. The posting, in relevant part, stated as follows

The Ministry of Enterprise, Opportunity and Innovation, Communications and Public Affairs Branch, requires multi-skilled communications professionals to provide strategic communications expertise; inform/advise internal ministry clients on corporate position/messages; design/prepare/evaluate a wide variety of communications products; plan/organize special events; and provide media relations. Location: Toronto.

Qualifications: superior writing/editing skills; knowledge of communications theory/techniques; stakeholder management, evaluation; demonstrated ability in media relations; problem-solving and research skills; judgment, initiative, ability to work independently and as part of a team with minimal supervision; able to handle competing priorities in fast-paced environment.

The competition was an “open” competition, meaning that persons outside of the Ontario public service could apply. The posting appeared not only in internal publications but in the Globe and Mail as well.

The Ministry received over 1200 applications for these two positions. Both Mr. Kearse and Ms. Barr were on the selection committee and, in conjunction with Human Resources, screened them all. Fifteen applicants, including the grievor, were selected for an interview. Approximately half of the applicants to be interviewed worked for the government, although only Ms. Naczynski was from inside the branch. The rest were from outside the public service. According to Ms. Barr, the applicant pool was rich in “top-notch” and “extremely qualified” candidates. The selection for an interview was based on the applicants’ resume and cover letter, matching them to the qualifications for the position.

It does not appear that the applicants’ resumes and cover letters were further used in evaluating the candidates. No score was recorded for their resume. Instead, scoring was based on an oral interview with Ms. Barr and Mr. Kearse and a writing exercise – specifically, writing a news release. Personnel files were not reviewed, and reference checks were only done on the top three candidates. Ms. Barr explained that it was Ministry policy to do reference checks only on the top candidates. To check the references all fifteen individuals to be interviewed, in the Ministry’s view, would be onerous and unfairly raise expectations.

Further, according to Mr. Kearse, reviewing an internal applicant’s personnel file, could potentially give internal candidates an unfair advantage, since they would not be able to review the personnel files of outside candidates

The Ministry was looking for a multi-skilled communications generalist who could write, handle media relations, develop communications strategy and planning and event and issues management. Ms. Barr, in conjunction with Human Resources and Mr. Kearse, developed the five interview questions and the minimal acceptable answers, which she then reviewed with Mr. Kearse. Each question was worth ten points, although there was no specific breakdown for each answer. The writing exercise was also worth ten points.

Each applicant to be interviewed was given a package of information from Human Resources to read before the interview which explained the job and how the interview would be conducted.

Of the fifteen candidates interviewed, Ms. Naczynski scored tenth overall, with an average score of 36 out of 60. Mr. Trotter, one of the successful candidates, scored 55 and Ms. Hawkins, the other successful candidate, scored 53.

The questions, in my view, were all job-related. The questions were as follows:

1. Oral Communication Skills.

What makes you a good candidate for this position? Tell us briefly about your experience in preparing communications plans, dealing with the media, giving communications advice to clients, solving problems and working under pressure.

2. Government Priorities

Please tell us what you believe to be the government’s top priorities and how you think that the Ministry of Enterprise, Opportunity and Innovation development and trade initiatives contribute to achieving the government’s agenda?

3. Communications Planning

Please give us an example of an effective communications strategy that you have developed. What were the key elements of your strategy? How did you position the initiative with the targeted audience? What was your media relations strategy? How did it turn out?

4. Project Management

Managing a project can be challenging, especially when you are dealing with conflicting priorities and tight deadlines. Please describe the different steps of a project you have managed: what worked well, what did not work so well, how you would go about it if you had to do it again?

5. Scenario Question

A major Ontario company announces that it is puling out of the Province and relocating to the U.S. The Minister wants communications advice on how to handle the media scrum outside the Legislature. What do you advise?

For each question, Ms. Naczynski was consistently rated lower by both Ms. Barr and Mr. Kearse than the successful candidates. They both did their scoring independently, and scored based on the “minimum acceptable answer”, but because there was no specific breakdown in regard to the answers, there was some subjectivity involved in the scoring. In part, the score was based on their impression of the quality of the answer.

I do not find it necessary to go into great detail about the candidates’ answers or the scoring. Generally, Mr. Kearse and Ms. Barr testified that the successful applicants’ answers were more complete, detailed, and complex than the grievor’s answers, and demonstrated a higher level of skill and sophistication. The evidence at the hearing bore that assessment out.

For example, in response to Question 3, the example of a communications strategy/plan, she described her work for a Harp Society concert in which she prepared a news release and poster and faxed them to 33 arts and entertainment editors, with the goal of getting free publicity and increased attendance. She received “some media calls” and referred calls to an action line. In the end, though, due to an ice storm, attendance at the concert was low. For this answer, Ms. Naczynski received a score of 6 from Mr. Kearse and 5, from Ms. Barr. In her own view, she should have received a 7.5 or 8.

Ms. Naczynski’s response was viewed by the panel as a simple example, which did not demonstrate a level of sophistication in communications planning. Ms. Barr testified that she did not review her strategy or explain her tactics, and there was “not a lot of planning involved.” She stated that the grievor “did not demonstrate the kinds of things that we were looking for, at a sophisticated level.” They were also surprised that she picked an example which had been unsuccessful.

Mr. Trotter, in response to this question, discussed his work while employed in communications for Scotiabank, in regard to a fund raising drive the bank was doing in conjunction with Royal Victoria Hospital in Barrie. He discussed his target audiences, the development of his communications strategy and working with local media and officials from the Hospital and the bank, the decision to hold a local event kicking off the fund-raising drive. There was coverage in the local papers, and in the internal employee newsletter, and the fundraising goal was achieved. Mr. Trotter was rated a 10 by Mr. Kearse and given a 9 by Ms Barr.

Similarly, Ms. Hawkins discussed her work promoting Ontario Libraries Week, with the goal of keeping it fresh. She discussed her objectives, her communications strategy, tactics and implementation as well as the outcome of the project. She was given an 8 by Mr. Kearse and a 9 by Ms. Barr.

A similar disparity in the quality of the grievor’s answers existed in the other questions as well. The panel regarded the answers of Mr. Trotter and Ms. Hawkins as more complete, more pro-active and sophisticated than the answers of Ms. Naczynski. It is my view that the evidence at the hearing supports their conclusion, There may have been some questions, notably her response to Question 5, that might have been given an additional point, but overall, the evidence supports the scoring of both Mr. Kearse and Ms. Barr.

On a number of the questions, Ms. Barr and Mr. Kearse were surprised by the grievor’s low score, given her work experience and time in the government as well as the Ministry. For example, in regard to the first question, Ms. Naczynski focused on her journalism and writing experience, but did not discuss issue management, strategic communications planning or event planning. In Ms. Naczynski’s view, however, she “aced” that question and should have received a score of 10. When asked why, in examination in chief, she replied that she had “already been an I.O. 3 for 15 years” and she had “been in the job, doing the job.” In regard to the second question, which involved Ministry and government priorities and would seem to be a question in which the grievor would excel, she did not discuss a number of the government’s top priorities, or elaborate on how the Ministry contributed to them. Both Mr. Kearse and Ms. Barr recall her answer as being “short”.

Both Mr. Kearse and Ms. Barr agreed, on cross-examination, that if the candidate did not bring out their experience in the interview, it was not considered. Ms. Barr stated that she believed it was fairer that way, since some candidates were known to the panel while others were not.

In terms of the writing exercise, Ms. Naczynski was rated a 7 out of 10 for her press release, whereas both Mr. Trotter and Ms. Hawkins were rated higher. Mr. Kearse explained that his lower score of the grievor was based on the fact that her news release read more like a factual newspaper article than a positive messaging piece which, in his view, was the purpose of the release. The evidence bears this assessment out. Both Mr. Trotter’s and Ms. Hawkins’s news releases were more “message-driven” than the grievor’s work, which was more factual. In some ways, Ms. Naczynski’s work was more informative, and more tied to the facts, but it did not send the positive messaging that the evaluators were looking for as well as the releases of the successful candidates.

In her review of the written assignment of both Mr. Trotter and Ms. Hawkins during the hearing, Ms. Naczynski noted a number of technical flaws, particularly in relation to Mr. Trotter’s work, for which she believed points should have been deducted. She agreed that it was “nitpicking” but they were mistakes she noted based on her editorial background. Mr. Kearse explained that they were not expecting the candidates to know or follow exact Ministry requirements and did not believe marks should have been deducted.

Mr. Trotter, who was given a score of 9 on the writing assignment, included information he had obtained from Ministry’s website but which was not included in the packet of materials for the writing assignment. In the Union’s view, this provided an unfair advantage to Mr. Trotter. According to both Ms. Barr and Mr. Kearse, however, there was no prohibition on including other source materials, and they believed his researching that additional information demonstrated initiative, interest and going “the extra mile.”

Both Ms. Naczynski and Mr. Trotter brought portfolios of their work which the panel reviewed but did not evaluate or include a score for it. A portfolio was not required of the candidates and not all of the candidates brought one with them. Ms. Barr testified that one cannot be sure that the work in a portfolio is really done by the applicant, so they preferred to rely on the writing assignment and the interview to understand the candidates’ experience and abilities.

Following the interview, Ms. Naczynski wrote a thank-you note to Mr. Kearse and Ms. Barr. It states:

Thank you both for my interview today. As they say, “I was thrilled just to be nominated!” The questions haven’t change that much from the last time I went through this – there are fewer of them, but they ARE longer…

I never feel I answer interview questions adequately – I’d rather be asking the questions, that’s what I’m used to – but I hope my resume, my writing and my personality have shown you that I’m the right person for this job.

Thanks again, and I look forward, as always, to working with you in any capacity.

Ms. Naczynski testified that she finds it difficult to “sell” herself and felt that she could have said more in the interview and done more to promote herself. On cross-examination, however, she stated that she writes something similar in every thank-you note after a job interview, and that she felt that she answered the questions “adequately.”

Once the scoring was completed and tallied, the references of Ms. Hawkins, Mr. Trotter and the third place candidate were reviewed. Mr. Kearse testified that the references were very positive and confirmed their selection. On September 19, 2003, Mr. Kearse advised the grievor that she was not one of the successful candidates, before the results were announced publicly. The instant grievance followed.

The grievor testified that she grieved the results because the “result was not logical or reasonable” given her experience and qualifications compared to those of the successful candidates. She felt underutilized in her present position, and felt that the job competition was an opportunity to move on and demonstrate that she was capable of more.

Decision

After carefully considering all of the evidence presented, the arguments of the parties and the case law, I conclude that that there were flaws in the running of this competition, but that this is not an appropriate case to either award the grievor the position or to order a re-run of the competition.

1. Were there flaws in the competition?

The case law establishes that the employer “must employ a process of decision-making designed to consider the relative qualifications and ability of the candidate[s] in a competition…” Re OPSEU (Quinn) and Ministry of Transportation and Communications (1979), GSB No. 9/78 (Prichard) at p. 3. To that end, sufficient relevant information must be obtained so that a thorough and proper comparison may be made. As the Board explained in Re Quinn, supra at p. 10:

The employer must design and utilize a selection process in job competitions that is consistent with the purposes of the selection process. Thus, under this collective agreement, the process must be designed to elicit in a systematic manner sufficiently comprehensive information about each applicant relevant to the qualifications and ability required to perform the job in order that a fair and reasonable assessment of the relative strengths of the candidates can be undertaken and the final selection made.

In this case, the Ministry relied exclusively on the candidates’ scores on the interview questions and writing assignment. I find no flaw in the interview questions or the scoring, in general. I cannot agree with the Union that the grievor was systematically underscored by the panel. Her responses to the questions were not as thorough, detailed or sophisticated as Ms. Hawkins or Mr. Trotter, and her marks reflect that. I cannot conclude, on the evidence, that the grievor should have been given additional points, and certainly not enough additional points so as to place her in a relatively equal position.

Nor is there any credible evidence of bias on the part of either Mr. Kearse or Ms. Barr. Although Mr. Kearse relayed to the grievor comments he had heard two of her co-workers say – that he heard she was “aggressive”, “like a bull in a china shop” and “not a team play” - he did not share that view. Indeed, they had little interaction before the interview. I credit Mr. Kearse’s testimony that he relayed those comments to her as constructive feedback, and that he had an open mind regarding the competition. The fact that Ms. Barr’s scoring of the grievor was significantly consistent with Mr. Kearse’s scoring also undermines the contention that Mr. Kearse’s scoring was biased. Ms. Naczynski’s meeting with Ms. Barr went well and she advised the grievor, at the time, that the Ministry would be hiring soon. The fact that she was aware of Mr. Kearse’s comments to the grievor does not render her scoring suspect. On the contrary, I find that the marks that Ms. Naczynski received were a fair reflection of the quality of her answers, and not the product of any bias against her.

In Re OPSEU (Esposito) and Ministry of Housing (1995),GSB No. 2168/92 (Kaplan), the evidence of potential bias was much stronger. One of the panelists was the grievor’s supervisor and they had some difficulties. He had given the grievor a written warning for lateness, which she grieved. That grievance was still outstanding at the time of the competition. He had also counseled her about her work performance. Even in these circumstances, the Board found no credible evidence of bias.

Also in Re OPSEU (Esposito), supra, the Board ruled that although the grievor may not have been given all of the credit for her answers that she might have been, there was no overall unfairness in the grading process. The Board stated, at pp. 28-29:

[W]hile a handful of questions might have been marked differently, and while other assessors might have been more generous in the assignment of grades, we cannot say, having carefully reviewed the grievor’s answers and grades…, and those of the successful applicants, that there was any overall unfairness in the grading process. Certainly, there was no evidence that the grievor was singled out for particularly harsh treatment when it came time to assign grades, nor is there any credible evidence supporting the assertion that Mr. McBride was biased against the grievor. …While the evidence does suggest that the grievor might have received some additional points for a number of questions, we find that, on balance, her final grade accurately reflects her performance in this competition, and that her performance was [not] comparable to that of the three successful applicants.

The same conclusion applies here.

I also cannot conclude that the scoring of the questions was improperly subjective. Although the panel had a “minimum acceptable response”, it was not divided into a numerical breakdown with a structured marking scheme. There is some case law support for the view that a structured marking scheme is preferable, but there is also case law that recognizes that the answers for all questions cannot be mathematically broken down. In OPSEU (Kai) and Ministry of Solicitor General and Correctional Services,GSB No. 3289/92 (Abramsky) at p.35, I held that “it was not clear how standard scoring could be achieved for communication skills or interpersonal skills.”

In this case, the panel did follow their “minimum acceptable response” in scoring, and evaluated the answers provided in comparison to that response. But they asked open-ended questions which the candidates could respond to in any number of ways, leaving some leeway for judgment by the panel. Under these circumstances, I find no flaw that there was some subjectivity in the scoring.

The Union also took issue with the weight given by the Ministry to writing and research skills, at which the grievor excelled. I can not agree. The Ministry clearly considered writing and research ability, and the evidence showed that the position involved a variety of other communications experience and skills. As the Board held in OPSEU (D. Bent) and Ministry of Transportation, supra at p. 9:

Although it is important that the criteria used in the selection process relate to the requirements of the job as set out in the job specification it is not necessary for every single criteria of the job specification to be given the exact mathematical equivalent in the selection process. Rather it is sufficient if there is a rough correction between the requirements of the job as set out in the job specification and of the criteria set forth by the selection committee.

The Union contends that the panel should have, but did not, ask follow-up questions of candidates to elicit more information, particularly in the grievor’s case since they knew that she had more experience than she had demonstrated. In my view, the decision not to ask follow-up questions, provided the same practice is followed for all the candidates, is not a flaw. In this case, the same practice was followed for all candidates.

The Union also asserts that the writing assignment was flawed because Mr. Trotter was allowed to use materials not provided for by the Ministry. He incorporated information he had obtained from the Ministry’s website about the auto industry in his sample news release. In the Union’s submission, this gave Mr. Trotter an unfair advantage. In support, it cites to OPSEU (Thompson) and Ministry of Correctional Services (2002), GSB No. 1999/98 (Harris). In that case, the Board ordered a re-run, in part, based on flaws in the written test. The candidates did not all have the same amount of time to complete the test, and not all of the candidates were provided with a particular form of calculator. The Board concluded that the test was unfairly administered in both the time allowed and the materials provided.

In this case, all of the candidates were provided the same materials and equipment and had the same amount of time to complete the assignment. Mr. Trotter used research he had done, in preparation for the interview, to add facts about the auto industry to his news release. Ms. Hawkins added a quote from Buzz Hargrove which was not in the materials. Likewise, Ms. Naczynski made up a quote from the Minister which was not part of the materials provided. There was no prohibition on using or relying on other materials or quotes. I find that Mr. Trotter was not provided with an unfair advantage when he utilized the research he had done in his news release.

Nevertheless, there were a number of flaws in the manner in which the Ministry proceeded. The Ministry’s primary flaw was its exclusive reliance on the interview and writing assignment to compare the candidates. The applicants’ resumes and cover letters were reviewed only to determine if an interview would be granted. They were not used past that point. What the Board has required is that the application form and/or resume be considered by the employer in assessing the candidates. It need not give it a numerical score. As the Board held in Re OPSEU (Bent), supra at p. 6, “[i]t is sufficient to show that these matters were considered and given due consideration, that it is not ignored….” In this case, however, once the screening process for an interview was completed, the application and resume were not referred to again. That is a flaw.

Likewise, the grievor’s personnel file was not reviewed, nor were any supervisor reports elicited. Instead, the selection was based solely on the applicants’ interview scores and writing assignment score. In Re Esposito, supra at p. 26, the Board stated: “As the Board has noted in a legion of cases, where a selection panel relies inordinately on interviews it does so at its peril.” Essentially, the Board has consistently held that it is not sufficient for the employer to obtain this information for the top few candidates only, since “the information should have been gathered and considered for all applicants granted an interview as part of the employer’s obligation to systematically and comprehensively gather information about candidates.” Re Esposito, supra at p. 26.

In Re OPSEU (D.Bent), supra at p. 4, the Board was even more emphatic regarding a ministry’s decision to only contact the supervisor of the successful candidate rather than check the references of all who obtained an interview. The Board stated:

The evidence is clear that the Ministry only contacted the supervisor of the successful candidate and did not contact any other supervisor. This practice exists in spite of numerous previous Grievance Settlement Board decision that say it is an essential part of the selection process to do a reference check on the candidates. This Ministry, however, seems to adopt the practice that that they are only verifying their decision by checking with the supervisor of the successful candidate presumably to see of the reference check bears out their opinion. This again emphasizes the slavish devotion that the Ministry seems to have with respect to interview scores and its failure to understand that an interview is only part of the selection process, another part being a reference check for all of the candidates who have at least obtained interviews.(emphasis added).

Although I can appreciate the Ministry’s view that calling all fifteen candidates’ references would be onerous and might unfairly raise expectations, the Board’s jurisprudence could not be clearer. It is truly hard to understand why an employer would not follow the Board’s clear decisions on this issue.

In so ruling, I cannot agree that because this was an open competition there was no such requirement in this case. I accept that personnel files and direct supervisor reports may, at times, be very difficult, if not impossible, for the employer to obtain for outside candidates, particularly if the candidate does not want their current employer to know that they are seeking a new position. Further, outside employers may be, for legal or other reasons, unwilling to share an employee’s personnel file in this manner. If so, then having this information for some candidates, but not others, may provide an advantage to an applicant from inside the government. It is a dilemma since, in an open competition, the employer may wish to “make the selection criteria equal to all who apply.” Re OPSEU (D. Bent), supra at p. 9. Nevertheless, the Board has concluded that personnel files and supervisor reports form part of the information that the employer should ascertain. Given the significance of an employee’s rights under Article 6, I do not find that this requirement should be abandoned in an open competition.

The Union also contends that the Employer should have considered and given weight to the grievor’s portfolio. The panelists testified that they did not do so because not all candidates provided one and because they thought that the interview questions and writing assignment provided a full evaluation. Further, they felt that one can not be sure that the materials in a portfolio are really the work of the candidate. I find no flaw in the employer’s failure to consider and give weight to the grievor’s portfolio.

Consequently, the evidence establishes that there were a number of flaws in this competition. The next question is whether, on the balance of probabilities, those flaws were material.

2. Did the flaws affect the outcome of the competition?

In a job competition grievance, the onus is on the Union to establish that the grievor was relatively equal in terms of qualifications and ability. But if the competition is so fundamentally flawed as to prevent a proper assessment of that from being made, a re-run may be required. In contrast, where the flaws are de minimis or could not, on the balance of probabilities, have affected the outcome, a violation of the collective agreement will not be found.

In D. Bent, supra, a two-part analysis was set forth. Specifically, the Board stated at p. 12:

[I]t seems clear that the onus in on the Union to establish not only that the defects existed but that had the defects not occurred, that the grievor would have got the position… In other words, if the Union is able to show that there were procedural defects in the selection process then they must show on the balance of probabilities that had those defects not occurred, the grievor would be found to be relatively equal.

This standard, particularly for a re-run, was questioned in OPSEU (Suave) and Ministry of Transportation (1992), GSB No. 1695/91 (Gray). In OPSEU (Cordileone/Jamieson) and Ministry of Transportation (1997), GSB No. 1228/94 (Fisher), Vice-Chair Fisher clarified that his decision in D. Bent, supra, is “only to be used when the defect is easily corrected (like ignoring an inappropriate question and adjusting the score accordingly). It is not to be used when to try to predict the outcome absent the procedural defects would amount to mere speculation or guesswork.” (page 4).

Considering all of these cases, and the other cases cited to me, it seems that there are two standards – one for ordering the grievor into the position and one for ordering a re-run. If the Board is to order the grievor placed into the position, the Union must prove, on the balance of probabilities, that the flaws would have affected the outcome. In other words, the grievor must show, on the balance of probabilities, that he or she would demonstrate relative equality if a proper selection procedure had been done. In a re-run situation, the Union must establish, on the balance of probabilities, that the flaws could have affected the outcome. If neither onus is met, the grievance must be dismissed.

The Union suggested, in its written submissions, that the Board changed the onus of proof in these cases in Re Cordileone/Jamieson, supra. I do not agree. Although there is language in that decision which may be read that way, there was no discussion in the decision of such a major change in the jurisprudence. Further, in Re Suave, supra at p. 34, the Board agreed with the decision in D. Bent that the question of whether the result would have been more favorable to the grievor if qualifications and ability had been properly assessed “is a question on which the union bears the ordinary burden of proof on a balance of probabilities.” I therefore cannot conclude, based on one sentence in a decision, that the Board changed the onus of proof.

In OPSEU (Suave), supra at p. 31, the Board held that after D. Bent, supra, “an unsuccessful applicant who complains that a selection committee failed to gather appropriate sorts of information can be expected to put before the Board any of the missing information which supports his or her claim to the job.” I agree. It is not sufficient merely to state that the information was improperly not assessed. It must be submitted and shown that it would have, or could have, made a difference.

In this case, the Union asserted that the employer improperly failed to consider the grievor’s resume, her personnel file and supervisor evaluations, and her portfolio, and that had those things been considered, the grievor would have been found to be relatively equal. There are a few difficulties with that argument.

First, the Union did not submit into evidence the grievor’s personnel file or any supervisor evaluations. It provided no evidence to show these things would have or could have made a difference. The documents were not introduced, nor was any testimony elicited about what information would be contained in her personnel file or a supervisor evaluation.

I do not believe that requiring the Union to provide this type of evidence is unreasonable or impossible, as the Union submits. The grievor has access to her personnel file. She may have received a performance appraisal or feedback from a supervisor. It is certainly not impossible for the Union to obtain this type of evidence.

Second, the grievor’s resume and cover letter do not reveal a great deal of experience in the type of work performed in the Communications Officer position. The Union argues, however, that because she performed similar work in the past she is at least “relatively equal” to the successful applicants. It asserts that if the Employer had properly considered her resume - and her personnel file and supervisor evaluation – it would have realized that she had the type of experience the Ministry sought, and that she was, at least, relatively equal.

There is some substance to the Union’s argument. Clearly, her work in MEST was related to the type of work in the Communications Officer position. Her resume does indicate that she did “communications planning/strategic planning and project coordination of varied branch products, and liaising with senior staff to obtain approvals”, and that she was “part of a small communications team supporting the government’s messaging…” But there are no specifics of her experience in her resume or cover letter. Similarly, there were no specifics in her answers in the interview, nor in her testimony. Throughout, there were no specific examples of what she did in these areas or accomplished. For example, what communications plans or media event did she develop, who was her target audience, what was her communications strategy and what was the outcome? None of this information was provided. Yet this was exactly the type of information that the panel was looking for in its evaluation of the candidates, and which they received from both Mr. Trotter and Ms. Hawkins.

Consequently, I cannot conclude, based on the grievor’s resume, cover letter, her answers during the interview or her testimony, that she was “relatively equal” to Mr. Trotter and Ms. Hawkins. I cannot conclude that had the panel considered her resume or cover letter that it would have affected the outcome.

The Union further contends that the interview was not reflective of Ms. Naczynski’s true experience or knowledge. It argues that she has difficulty “selling” herself and should not be penalized for that. It points to the fact that both Mr. Kearse and Ms. Barr were surprised by the grievor’s answers, given her experience and knowledge.

There are, of course, some people who cannot “sell” themselves well in an interview. I am not convinced that Ms. Naczynski is necessarily one of them, given her testimony at the hearing and her “dog and pony” show, which took confidence and courage to do. But there are people like that, which is why the interview should not be the sole determinant of a competition. Other relevant information must be gathered so that a complete and fair evaluation of the relative skills and abilities of the candidates may be made.

An applicant, however, cannot be given points for what the panel knows about them. A panel member cannot give a candidate points for knowledge or experience they “know” the candidate has when the candidate did not demonstrate that knowledge during the interview. OPSEU (Esposito), supra at p. 28. If that was allowed, job competitions would become unfair and a complete farce. The fact, however, that some people may not do well on an interview is why other sources of information must be reviewed. The assessment must be made on demonstrated knowledge and skills – through the interview and/or test, the application or resume, the cover letter, personnel file and references.

In contrast to the lack of detail in the grievor’s resume and cover letter, the cover letter and resume of Ms. Hawkins goes into significant detail about her experience in event planning, management and implementation, her writing, her skills in media relations and her experience developing “key messages and to determine effective methods of delivery these messages to the public”, and working with various stakeholders. She effectively tied all of her experience to the requirements set out in the posting. The same is true of the resume of Mr. Trotter. It is far more detailed about his work and specific accomplishments and ties in directly to the requirements of the position.

The evidence further showed that not all I.O. 3 positions are the same. I.O.3 is the job classification, not the specific job. The vast majority of the grievor’s work was in writing and editing, for which she won a number of awards. Consequently, while she was an I.O.3 for fifteen years, that alone does not speak to her qualifications and skills for the Communications Officer position.

Despite his relative youth, Mr. Trotter appears to have had more directly relevant experience than the grievor and seems to have done far more of the types of things that the job required. He also did a much better job of communicating that experience in the interview and in his resume. Based on the evidence presented, the same is true of Ms. Hawkins. Given the type of job in issue – a Communications Officer – that fact is significant.

The Union also argued that the Employer should have considered Ms. Naczynski’s portfolio. Earlier, I ruled that its failure to do so was not a flaw in the competition, since the candidates were not asked to provide one and some, including Ms. Hawkins, did not. Nevertheless, even if the panel had considered the portfolio of Ms. Naczynski, I conclude that it would not, and could not have changed the result. Mr. Trotter’s portfolio was decidedly superior.

Consequently, on the evidence presented, I cannot conclude on the balance of probabilities, that had the employer more fully considered the grievor’s resume and application, or portfolio, it would have, or could have, affected the outcome. Nor is there any evidence that the grievor’s personnel file or supervisor reports would have, or could have, affected the outcome. The difference in the scores was 33%. It is a significant hurdle to overcome.

As the Board held in Re Esposito, supra at p. 27, had the employer done reference checks and reviewed the grievor’s personnel file they “would have become aware that the grievor did have some job knowledge which she had failed to communicate during the interview” as well as a “performance appraisal which, in the overall, ranks the grievor midway between satisfactory and commendable.” Nevertheless the Board determined “that a more thorough gathering of information of information would not, in all of the circumstances of this case, have changed the result.” In my view, the same conclusion applies here.

One can easily understand why Ms. Naczynski filed this grievance. She is clearly a woman of great capabilities, experience, determination and commitment to the public service. She has provided many years of valuable service. There is no doubt that she will continue to render valuable service to the employer in the future. However, while I conclude that there were flaws in this competition, and so declare, I cannot find that the Union has established, on the balance probabilities, that the grievor is relatively equal to the successful candidates, or that this is an appropriate case to direct a re-run.

Accordingly, for the reasons set forth above, the grievance is dismissed.

Issued at Toronto this 16th day of January, 2006.