GSB# 2004-0224

UNION# 2004-0340-0003

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Sutherland)

Union

• and -

The Crown in Right of Ontario (Ministry of Finance)

Employer

BEFORE

Owen V. Gray Vice-Chair

FOR THE UNION

Peter Shklanka Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

Benjamin Parry / Yasmeena Mohamed Counsel Ministry of Government Services

HEARING

July 26 and October 31, 2005; April 28, May 2, June 19, 20 and September 20, 2006.

Decision

1The grievance before me for arbitration alleges that “the competition Job Req# 3954 was flawed (Article 6)” and asks that the grievor “be awarded the job retroactive to January 13/04 with full wages and benefits.” The successful candidates in the competition had notice of the hearings in this matter but did not seek to participate in them actively.

2The competition was for two newly created OAG12 Program Analyst positions in the Technical Education Unit (“the TEU”) of the Retail Sales Tax Branch of the Ministry’s Tax Revenue Division. The May 2003 posting for the positions described the positions as follows:

The Retail Sales Tax Branch (RSTB), Technical Education Unit (TEU) requires detail-oriented individuals to provide operational, technical, and administrative support to a unit which provides formal legislative, services, audit, and refund training to all staff who administer RSTB programs. In a fast paced, professional environment, you will partner with trainers during the training process, and you will analyse and evaluate training results to make recommendations for improvements to management. Using your technical expertise you will create training material, write reports, maintain statistical data, and develop Interactive computer learning programs.

Qualifications: Knowledge of the Retail Sales Tax Act, regulations and related Ministry/branch procedures/policies to provide operational support to the unit; knowledge of and ability to use computer hardware and software programs, (e.g. PowerPoint, WordPerfect, Lotus 1 2 3, Adobe Acrobat, Internet/Intranet, database management software) to create training material, reports and statistical data, communication/interpersonal skills to write and present reports, facilitate training and to contribute to a positive working environment, research/analytical/evaluative skills to collect, compile and assess data/legislation/policies/practices for use in presentations or management reports, to review data and statistics and make recommendations to management for improvements and to research new training technology; organizational and problem solving skills to meet concurrent assignment deadlines; knowledge of training methodology to participate in/conduct needs analysis, to create training material and to design and facilitate general-topic training.

3The grievor is a long serving employee of the Ministry who had more seniority than the two candidates who were awarded the positions. In 2002 and early 2003 the grievor was seconded to a position in the TEU that was quite similar, but not identical, to the positions that were the subject of the competition.

4Although the positions were posted in May 2003, the competition interviews and tests did not start until December 2003. The competition panel consisted of Hugh Rorison, then manager of the TEU, and Christina Shank, then acting manager of the Quality Services Unit of the Retail Sales Tax Branch. They screened out all but the six applicants who, from their applications, seemed most qualified for the positions. Each of those six applicants was interviewed by the panel using a prepared set of questions. Each was also given a software aptitude test and a memo writing test in a 90 minute session at the Ministry’s head office on Ministry computers. The two competition panel members individually scored each question and the results of each of the two tests. Except where otherwise noted, scores referred to hereafter are the average of the scores assigned by each of the panel members.

5The grievor and one other applicant achieved a score of 106 in the competition. Three other applicants had higher scores. The panel awarded the positions to the highest scoring applicants: Diane Graham, who achieved a score of 158, and Bev Bilinski, who achieved a score of 150.5.

6The grievor requested and was granted a post-competition interview with the job competition panel on January 19, 2004, to learn why she was unsuccessful. She grieved the result of the competition shortly thereafter.

The Issues

7During his opening statement, union counsel identified the following issues as forming the basis for the union’s claim that the competition in issue was conducted in an unfair manner in violation of the collective agreement:

a) Diane Graham was seconded to a position in the TEU similar (but not identical) to the grievor’s during a period that began after the grievor’s secondment did and continued after the grievor left. During that period, she and the grievor told management that Adobe Acrobat software would be useful to them in performing their jobs. Ms. Graham somehow obtained an unlicensed copy of the software that she had then used in performing her job, but the grievor was not been given a copy. She had thus been at a disadvantage relative to Ms. Graham in performing the part of the software aptitude test that involved the use of Adobe Acrobat. Also, the grievor was not given any performance evaluation during her secondment and thus was denied the opportunity to improve in the position or to address any concerns management may have had concerning her performance. From the feedback she received she believed her performance had been fine. The grievor’s own assignment in the TEU had been “terminated for no apparent reason,” while Ms. Graham’s had been extended, and she may have been in the position at the time of the competition. This had also given Ms. Graham an unfair advantage.

b) The interview component of the competition did not give proper weight to the grievor’s prior experience in the TEU in a substantially similar job. The grievor was not given the opportunity to explain and be evaluated on the fact that she had done the job for over a year. Certain of the questions were hypothetical and did not capture the candidate’s experience. Certain of the interview questions did not relate to things people in the job actually did. The grievor was interviewed in a hurried and unfair manner. She was not afforded the opportunity to enlarge on her responses. Her perception of the interviewers’ body language was that she was being cued to move on even though she had more to say. For a number of questions she did not have an opportunity to give full answers.

c) The computer she was assigned to use during the software aptitude test had not been properly set up, and this had adversely affected the grievor’s ability to properly perform the tasks required by the test.

d) There were inconsistencies as between the two interviewers in the way the grievor’s interview and test answers were scored, and inconsistencies between their scoring of her answers and their scoring of the answers of other candidates, all of which reflected a subjective bias in favour of the other candidates. The fact that use of Adobe Acrobat formed part of the test showed that the competition was skewed in favour of Ms. Graham, as did the fact that Ms. Graham had continued in her TEU secondment after the grievor’s secondment had ended.

8Although this was not alleged in the union’s opening, during her cross-examination the grievor stated that she believed there had been bias against her because her secondment to the TEU had been the result of a settlement of a grievance. She believed that for that reason ‘they’ had had no intention of giving her the job. She stated that she had been concerned that this might be so for months before the interview and tests, and that she had concluded that it was so following the software test. In this vein she testified that she believed that when she did the computer and written test she had been assigned a computer that had been deliberately set up in a defective state. Union counsel adopted this bias allegation as part of the union’s position, and sought to establish a factual basis for it during in his cross-examination of the competition panel members.

9The employer’s position in opening, and throughout, was that the competition had been conducted properly, that the methods used to assess qualifications and ability were fair and objective, and that if there were any flaws in the competition they did not affect the outcome. As for the alleged computer difficulties, the employer said the grievor had not raised them during the test or before the results were announced, and that the grievor knew she could and should have raised such difficulties at the time they occurred, particularly since she had done that during a previous competition in which she had had computer difficulties.

The Evidence

The position

10Mr. Rorison testified that the TEU was formed in 1999 or 2000 to provide initial training for a large number of auditors being hired at that time. The role of the unit evolved and enlarged thereafter, as did the sense Mr. Rorison and his training staff had of their needs for technical and administrative support. Initially they just had someone to arrange for training rooms, transportation and equipment and to keep data on the outcome of training programs. The preparation and use of PowerPoint presentations in training was a relatively new and growing part of the unit’s activities. When trainers needed to have PowerPoint slides and other materials prepared they had to go outside the unit to enlist the help of someone with the necessary skills. They came to feel they should have those skills available to them within the unit. In late 2001 the unit got approval for two temporary technical support positions at higher skill levels. Those are the positions that the grievor and Ms. Graham filled. The positions and management’s sense of its needs both continued to evolve during those secondments. A definition for permanent positions crystallized in a Position Description Report (“PDR”) that was approved in March 2003. The job description in the posting quoted earlier in paragraph [2] is consistent with that PDR.

The Grievor’s secondment to the TEU

11The secondment of the grievor to the TEU was part of a settlement of a grievance. There is no evidence before me concerning the nature of that grievance. Mr. Rorison testified that after the two temporary positions were approved in late 2001 he was simply told that the grievor would be filling one of those positions for 12 months. He knew this was a result of a settlement. The settlement document set out the sort of duties she would be performing in the temporary position. He knew nothing about the grievance that led to the settlement, though. It was not a matter of concern for him.

12A month or two after the grievor started, Diane Graham was given the other temporary position on a six month secondment. The secondments of the grievor and Ms. Graham were interrupted by the strike in the spring of 2002, and the expiry dates of both secondments were extended by the length of the interruption. Mr. Rorison testified that Ms. Graham’s initial six month secondment (thus extended) was renewed once. The grievor’s secondment ended in early 2003 at the end of its extended term. When Ms. Graham’s renewal term came to an end thereafter, the unit functioned without administrative support personnel until the competition was completed.

13The grievor and Ms. Graham together told management they thought Adobe Acrobat would be useful in their work. On the basis of that presentation, Mr. Rorison requested the software for the branch. Ms. Graham somehow obtained and started using a copy of the software that was not licensed to the TEU, a fact of which Mr. Rorison became aware after her use of the software began. Mr. Rorison testified that the request for licensed versions somehow “went into limbo.” The licensed software did not arrive before the grievor’s secondment came to an end. In the meantime, however, the grievor was sent for training on the software in November 2002.

14The grievor asked Mr. Rorison more than once for a formal performance appraisal. Mr. Rorison spoke to his superior about this. He was told he could provide a formal appraisal if he wished. He testified that he just did not get it done. He did not give Ms. Graham a formal appraisal either. He was aware of the work performance of both of them, however, through direct observation and reports from the trainers who reported to him.

15The impression Mr. Rorison had was that the grievor’s work product frequently had to be sent back to her for correction. This was a concern, but not a serious concern. By contrast, he considered Ms. Graham a self-starter who produced work with a high level of acceptance, of which little revision was required. Challenged that he had not given the grievor that feedback by means of a formal appraisal, Mr. Rorison observed that the frequent return to her of her work for correction should have been instructive. He said that at the time he did not think giving her written criticism would have been helpful.

16When the grievor left the TEU she went to a secondment in the Seminars/Publications unit of the Tax Advisory Branch. She testified that while in that position she used Adobe Acrobat on a daily basis. In her May 23, 2003 application in this competition she stated that she had “demonstrated experience” in a variety of software programs, including Adobe Acrobat.

The Interview Process

17The grievor testified that the demeanour of the interviewers was cold and unsupportive. She stated that she asked them at the outset to let her know if she missed anything, and they nodded their agreement to do so. They did not alert her when she failed to address all of the issues raised in questions, however. The grievor stated that the interview was rushed. In particular, she was cued to move on before she had given a complete answer, leading her to believe she had “targeted” the answers, yet she had been given low marks for incomplete answers. She claims that in the post-competition interview Mr. Rorison told her, in effect, that other candidates had been prompted, that they had not just sat there “stonefaced.” She also says that she was not aware until the post-competition interview that the text of each interview question was printed on sheets that were face down in front of her during the interview.

18Interview question 2 described the work of the TEU and then said

We are looking for demonstrated effective writing and editing skills in addition to effect oral skills. Tell us about your experience with both.

The grievor’s answer did not address the “oral skills” part of the question at all. She scored 12.5 out of 20 on this question. Ms. Graham and Ms. Bilinski scored 17 and 17.5, respectively. The grievor testified that when she reached the end of her answer with respect to written skills, Ms. Shank simply read question 3 to her without first asking her whether she was ready to move on. She said this led her to believe she had “targeted” the answer, and she moved on with the panel to that next question. She does not claim that she was interrupted in mid-sentence, only that the next question was read after she completed a sentence. It is not clear from her testimony whether she claims that she had intended to say something about oral skills but was prevented or dissuaded from saying it, or whether in retrospect she realizes that she overlooked the last part of the question and feels the panel ought to have brought that to her attention before moving on. It is revealing in that regard that when asked for comment on the panel’s notes of the other candidates’ answers to that question, she said it appeared that the other candidates had “heard the entire question.” This is the only question from which she complains of about having been cued to move on.

19Mr. Rorison and Ms. Shank both testified that their interview procedure was consistent for all six candidates. Each candidate was told she would be asked a series of questions that were printed on sheets placed face down in front of her. The candidates could (and all did, as far as the interviewers recalled) turn each sheet face up as the question on it was read. There was a pen and pad of paper beside the question sheets, which candidates were told they could use if they wished to make notes to organize their response (to ensure that such notes were not made on the questions sheets themselves). Mr. Rorison and Ms. Shank alternated asking the questions. They each made notes of the answers. Candidates were told they could return to any question at any time to enlarge or modify their response to it. The panel members did not move on from a question without asking a candidate whether she wished to move on or had more to say.

20The panel members have no specific recollection of the instructions given to the grievor, or of her looking at the question sheets, but were both quite confident that the same process had been followed with her as with the other candidates. Ms. Shank testified that she had a generic competition check list that she had prepared in consultation with Human Resources at some time in the past to ensure that competitions in which she was involved were conducted appropriately. She said she consulted that checklist from time to time during each interview to ensure that each step was properly taken.

21Mr. Rorison and Ms. Shank both deny that the grievor asked to be alerted if she missed anything in her answers. Both testified that giving such guidance would have been quite improper, in their view. Ms. Shank observed that it would have been “highly unusual” for a candidate to make such a request, so she would have remembered if the grievor had done so. Mr. Rorison denied telling the grievor in the post-competition interview that other candidates had been “prompted.” He remembered making a comment about not sitting “stone faced.” That comment had been to the effect that if a candidate did not respond at all to a question after it was read to her they might paraphrase the question to get her started, but once a candidate had started answering they would not interrupt or prompt her. He testified that that comment was made in response to the grievor’s having asserted, without elaboration, that she understood that others had been prompted during their interviews.

22Ms. Shank also testified that when the grievor’s failure to cover “oral skills” in her answer to question 2 was discussed with her during the post-competition interview, she told that grievor that that was why each candidate had the questions in writing in front of her, so the candidate could review the question and decide whether her answer was complete before moving on. She also told the grievor that the panel had always asked each candidate whether she had more to say or wished to move on, to provide that opportunity and ensure that the candidate was not given the impression she had perfectly answered the question.

The Interview Questions

23Candidates were each asked ten questions. Only two were challenged as inappropriate to the positions in issue.

24Interview question 4 asked candidates to “Identify the various rates of retail sales tax and describe how they apply.” Question 6 said “Please describe purchase exemption certificates, who uses them and what is their significance for retail sales tax purposes.” The grievor did not do well on these questions, scoring 3.5 and 3 out of 10, respectively. By comparison, Ms. Graham scored 9 and 6.5, while Ms. Bilinski scored 3 and 1.5. The marking itself is not challenged, nor is it disputed that “[k]nowledge of the Retail Sales Tax Act, regulations and related Ministry/branch procedures/policies” was specified in the job posting as a job requirement. What is challenged is the requirement itself. In the grievor’s view, it was unnecessary for someone in the position to know such things; it should have been sufficient that a candidate know where to look them up.

25Mr. Rorison’s view was that knowledge of basic facts about Retail Sales Tax was a pertinent qualification, and that questions 4 and 6 concerned information that was quite basic for anyone who had been employed in the Retail Sales Tax Branch for any length of time. Ms. Shank also thought that these were basic matters that anyone in the Retail Sales Branch could be expected to know, whether or not their job involved advising or being consulted on those matters.

Completeness of Interview Notes

26With a few exceptions, the grievor agreed that the notes taken by Mr. Rorison and Ms. Shank reflected the answers she gave during the interview. She stated that in her answer to question 1, which asked about experience with computer software, she made reference to her years of experience with the Ministry, or to her seniority as she put it at one point in her cross-examination. She was concerned that the panel’s notes of her answer to that question did not reflect her having said that. The grievor testified that she made references to her seniority or years with the Ministry three or four times in the course of the interview, including once at the end of the interview.

27Ms. Shank’s notes of the grievor’s answer to interview question 2 record her mentioning her year in the TEU, and her notes of the grievor’s answer to question 3 note her mentioning her 17 years with the Ministry.

28The grievor testified that Mr. Rorison’s notes did not fully reflect her answer to question 9, but acknowledged that Ms. Shank’s notes did. It is not apparent that the omission in Mr. Rorison’s notes adversely affected the grievor’s score: she received a mark of 5 out of 10 from Mr. Rorison and 4 out of 10 from Ms. Shank.

The Marking of Interview Questions

29Interview question 5 asked “What are the common service standards?” The grievor got 6 marks out of 10. The two successful candidates each got 10. The panel’s expected answer organized the standards into four categories of standard. The panel’s notes indicate that the grievor’s answer mentioned the standards in three of the four categories. On her behalf, the union complains that having touched on three of the four categories, she should have been given more than 6 marks out of 10. Ms. Shank’s unshaken explanation is that the grievor’s answer did not fully address the three categories on which it touched.

30Question 10 asked the candidate to “Identify and describe various methods of training and your experience in delivering training.” The panel’s model answer listed eight training methods. In their view her answer addressed two of those. Ms. Shank gave her two marks out of six for the methods and two out of four for her account of her experience, for a total of four out of ten. Mr. Rorison gave her five out of ten. Ms. Graham’s score was the same as the grievor’s. Ms. Bilinski got 8 marks from each of the two panel members. The union argues that Ms. Sutherland’s mark was unfair because she had actually delivered training and her description of training methods should have been accepted as sufficient.

The Marking of the Memo Test

31The memo test involved writing a draft memorandum for the signature of the TEU manager. The memo was to define E-Learning and identify certain E-Learning concepts, based on a 45 page Conference Board of Canada paper on E-Learning. The grievor received a score of 23 out of 40. Ms. Graham and Ms. Bilinski received scores of 26.5 and 40, respectively. The grievor feels the scoring was unfair because her memo had fully and accurately captured the definitions set out in the paper provided, while Ms. Graham’s had not. While not disputing that she made several spelling, punctuation and other errors in her memo (which Ms. Graham had not), she felt that the substance of the memo should have been the primary consideration in marking.

32The panel members acknowledged in their testimony that the substance of the grievor’s memo was superior to that of Ms. Graham’s, but noted that the grievor’s memo contained numerous typographical and style errors: it was dated December 15, 2004 (a year in the future), the name of the manager sending it (Mr. Rorison) was misspelled (as “Orison”), punctuation was omitted or used incorrectly more than once, and generally the appearance and layout was unprofessional. Ms. Graham’s memo had not suffered from similar errors. They said they were looking for analytical skills, organizational skills and written communication skills, that marks were assigned for each, that this involved assessing both form and content, and that the memos of the grievor and Ms. Graham were each fairly marked from that perspective.

The Software Aptitude Test

33In the first part of the software aptitude test the candidate was to prepare three calendar documents using WordPerfect, insert notes of certain events in the calendar on their dates, convert each calendar document to pdf format using Adobe Acrobat, incorporate each pdf file into a PowerPoint slide, and save the results to disk. The second part of the software aptitude test involved writing a description of the steps taken to complete the first part and answering a question about why and when a particular feature of PowerPoint would be used. The grievor and four of the five other candidates did this test in a computer lab in the presence of Mr. Rorison and Ms. McGregor in mid-December, a few days after their interviews.

34The grievor testified that she had used WordPerfect to prepare such calendars when she worked at the TEU. Doing so had involved clicking a command that brought up a dialog box asking for the month and year of the calendar or calendars to be created. When those were entered, a macro would then run, modifying an month calendar template to apply the month name and year and insert the numbered dates of the month into the columns that corresponded to the days of the week on which those dates fell in that month. The grievor stated that when she clicked on the relevant command during the test, the software displayed a message that an “illegal operation” had occurred that might cause a loss of data if she continued. As a result, she said, she could not cause the software to modify the default template calendar to appear as a calendar should for the months of January, February and March, 2004.

35The grievor chose not to bring this difficulty to the attention of Mr. Rorison or Ms. McGregor when it occurred. She chose instead to make copies of the default calendar template without modification, other than to change the month name and year for each of the three required calendars from the default of December 1999. This had the result that each of her three calendars started on a Wednesday, as December 1999 did, rather than on a Thursday, a Sunday and a Monday, respectively, as January, February and March 2004 did. The days of the week did not correspond with the dates for the subject months and, consequently, the work events she had to enter for specific dates could and did sometimes appear to be taking place on a weekend.

36The grievor testified that when she then went to transform the WordPerfect files into pdf format using Adobe Acrobat, that software also gave her a message that an “illegal operation” had occurred that might cause a loss of data if she continued. Again, she chose not to bring this difficulty to management’s attention when it occurred.

37The grievor had several explanations for her having chosen not to bring these alleged difficulties to management’s attention when they occurred. One was that she thought the other candidates had been similarly equipped with software that had the same lack of functionality. Another was that, with respect to the WordPerfect documents at least, she felt she could work around the problem in the way that she did.

38It was put to the grievor that she had had computer difficulties during a test in an earlier competition, that she had brought those difficulties to the attention of those who had been supervising that test at the time, that the difficulties had been resolved and that she had then completed the test. She acknowledged all this. She said she acted differently on this occasion because there was no computer technician present, as there had been on that prior occasion, and she did not believe that either Mr. Rorison or Ms. McGregor had the technical expertise to fix the problems themselves.

39The second part of the software aptitude test required that the candidate “Describe steps taken by you, to complete the ‘calendar’ assignment” and answer a question about why and when a particular feature of PowerPoint would be used. The grievor’s descriptions of the steps she took made no mention of the difficulties she claims she encountered. I do not mention this as a credibility issue (it was not put to her that her answering in that way was inconsistent with her allegations about computer difficulties), but only to note that the competition panel would not have known of the alleged computer difficulties by that means before they made their decision.

40During the post competition interview discussion of her results on the software aptitude test the grievor told the panel of these alleged computer difficulties. As part of the employer’s case, Ms. Shank testified that on hearing this she asked the grievor whether she had brought this to anyone’s attention at the time, to which the grievor said “no” or made no reply. Although the grievor addressed other aspects of the employer’s case when she was recalled to testify in reply, she did not contradict Ms. Shank on this point.

41During the hearing before me, the grievor testified that at the end of the test, as she was leaving the room, she told both Mr. Rorison and Ms. McGregor that she had had difficulty with her computer. She said the only response to this was that Ms. McGregor said “oh.” Both Mr. Rorison and Ms. McGregor denied hearing any such report from the grievor at the end of the test.

42The grievor received 12 out of 40 marks for the computer aptitude test. Ms. Graham scored 36; Ms. Bilinski scored 25.5. The grievor testified that during the post competition interview she was told that her mark on that test was 23, and that the part affected by her computer difficulties had not been worth many marks. The evidence that she had been told her mark was 23 was not challenged or contradicted. Equally, the difference between that and the recorded mark was not put to either of the panel members in cross-examination. It was not suggested to either of them, for example, that they had deliberately misinformed the grievor or that 12 was not the mark that they had actually assigned at the time of the competition.

43Mr. Rorison testified that during the post-competition interview, when the grievor complained about having been disadvantaged with respect to Adobe Acrobat, the panel members told her that the number of marks assigned to the ability to use Acrobat to convert WordPerfect calendars to pdf documents was small, and that ability to use that software did not sway the result one way or the other. They pointed out that there were problems with the formatting of her calendars in WordPerfect. Although she blamed that on the computer, Mr. Rorison did not believe those deficiencies could be due to a computer problem. In addition, this was the first he had heard of a computer problem. He felt that if there had been a computer problem he ought to have been told at the time, as that was the only time when he could have had anything done about it.

Decision

44The pertinent part of Article 6 of the collective agreement provides that

6.3 In filling a vacancy, the Employer shall give primary consideration to qualifications and ability to perform the required duties. Where qualifications and ability are relatively equal, seniority shall be the deciding factor.

In their closing arguments both counsel referred to decisions of the GSB that elaborate on what this provision requires of the employer in the conduct of job competitions. Union counsel relied particularly on decisions which hold that the employer should not rely exclusively on a candidate’s ability to answer questions in an interview, but should also consider past experience, job performance and other evidence of qualification and ability. Employer counsel relied particularly on decisions to the effect that in order to win a remedy in a job competition grievance the union must show more than that the competition was flawed in some respect – that the Board will not order that a grievor be placed in the position unless the union establishes that the grievor would have been a successful candidate but for the flaws, and will not order that a competition be rerun unless satisfied that the grievor might have been a successful candidate in a properly conducted competition. I have considered the decisions cited. I will not review them here. There is no serious dispute about the applicable principles. The dispute is about the facts of this case and the application of the established principles to those facts.

45It is important to observe first that this is not a case in which the employer claims the grievor was not qualified or able to perform the job in issue. The panel only interviewed and tested candidates they considered qualified for the positions, having regard to their applications. The employer was entitled and obliged to assess each candidate’s qualifications and abilities to perform the required duties, however, and to rank the candidates in that regard on an objectively reasonable basis, in order to award the positions to the most qualified and able candidates, preferring the one with greater seniority when two had relatively equal qualifications and ability. The method used to assess qualifications and abilities here did not purport to show that the grievor was incapable of performing the job she actually had performed on secondment at the TEU.

46Union counsel made much of the grievor’s having performed a substantially similar job in the TEU for a year, and both parties devoted some evidence and argument to the similarities of and differences between what she did during her secondment and what the new positions required. Even if she performed exactly the same job, however, this would demonstrate no more than that the grievor was qualified and able to perform the job, which is not in dispute. That fact alone would not, indeed could not, demonstrate that she was the most qualified and able candidate, nor that her qualifications and ability were relatively equal to those of the most qualified and able candidates.

47Part of the union’s attack on this competition concerned the grievor’s treatment during the prior secondment at the TEU. The secondment was not as she had expected. She was disappointed that she was not equipped with Adobe Acrobat during the time Ms. Graham had the use of an unlicensed copy, and that she was not given a formal performance appraisal. She connects these matters with the outcome of the competition.

48It is not apparent how the grievor’s not having had the use of Adobe Acrobat during her time at the TEU materially affected the outcome of the competition. She had training on Acrobat while at the TEU. On her own evidence she made daily use of Acrobat for several months between the time she left the TEU and the time she was called upon to use it in the job competition. She had ample opportunity to obtain the “demonstrated experience” with Acrobat that she claimed in her application for the position. What the test required was not, as the grievor claimed in her testimony, and “advanced” use of Acrobat. The task required was quite basic. In any event, the grievor attributes her difficulty with Acrobat during the software aptitude test to a defect in the computer or the copies of the software loaded on it, not to a deficit in her knowledge of or experience with Acrobat. As for her not having had a formal performance appraisal, it is entirely speculative whether her having had one would have added anything to the feedback she did have that might have improved the outcome of the competition, or to her ability to succeed in the competition.

49More importantly, these were not defects in the conduct of the competition itself. They are alleged defects in her treatment during or in respect of the secondment. The grievor did not grieve them when it would have been timely to do so. An unfavourable outcome in a subsequent competition for a permanent version of the job she performed on secondment (assuming that is what this was) did not revive the opportunity to grieve those matters. Evidence about what happened during the grievor’s secondment could be pertinent only to the claim that the competition panel was biased against her or, if it had been in dispute, to the question whether she was qualified and able to perform the job. Except to the extent that it may support the allegation of bias, the grievor’s having been afforded less opportunity than Ms. Graham to gain experience in performing tasks central to the positions subsequently posted (if that is so) likewise cannot properly be characterized as a flaw in the competition.

50In his closing argument union counsel did not seriously pursue the allegation that the competition panel was biased against the grievor because of her having been a grievor in the past or because her secondment to the TEU had come about as a result of a settlement. There is nothing in the evidence to suggest that there was anything in Ms. Graham’s relationship or dealings with Mr. Rorison, other than her apparently superior work performance, that would cause him to favour her over the grievor. There is no reason why Ms. Shank should have disfavoured the grievor because she had once been a grievor. Certainly none was put to her. There was no evidence to support the bias allegation, other than the grievor’s subject belief in it. That belief reveals much about the lens through which the grievor experienced, and described, the job competition. It does not establish that there was any such bias, however. I find there was none.

51I am not persuaded that the job in issue was defined or constructed so as to favour Ms. Graham. The job was defined to meet the needs of the TEU as its management saw them at the time. Mr. Rorison’s experience of the grievor and Ms. Graham during their secondments in the TEU evidently inclined him to a view that Ms. Graham was more capable than the grievor of performing the job as it had come to be defined. When the arbitral jurisprudence demands of competition panels that they consult the supervisors whom candidates name as references (and Mr. Rorison was so named by the grievor) as well as the candidates’ personnel files, Mr. Rorison’s having formed such a view cannot be a flaw, particularly when its basis was explored and not contradicted in evidence other than by the grievor’s testimony that she though she had done well.

52The competition panel was careful to ensure that each requirement of the job as described in the job posting was addressed in the competition process, and that the weight assigned to each aspect of the competition roughly matched the weight of the corresponding job requirement. As for the interview questions (numbers 4 and 6) about tax rates and exemption certificates, I find no fault with including in the job’s requirements some understanding of the context in which the job was to be performed. I accept the employer’s evidence that the information sought was basic information that employees in the Retail Sales Tax Branch could be expected to have. The requirement was clear on the face of the job posting. An applicant who did not have the required knowledge but knew where to acquire it could have acquired it in preparation for the competition.

53The grievor’s evidence about what occurred during the interview and the software aptitude test is sharply at odds with the panel members’ on several points. On at least two of those points the grievor’s account is highly improbable.

54The first is the grievor’s claim that at the beginning of the interview she asked the panel to let her know if she left anything out and that they nodded their agreement that they would. They say that did not happen, that such a request would be unusual and that their agreeing to it would have been improper. It may be open to debate whether an interview technique that probes for further information would be improper, but that is not really what the grievor claims to have asked for and, in any event, I accept that the panel members genuinely thought doing as the grievor asked would be highly improper. Accordingly, t is highly improbable that the panel members would have silently nodded their agreement in response to such a request. I find that there was no such request or response.

55The second of the grievor’s most improbable claims is that at the very end of the computer test, as she was leaving, she told both Mr. Rorison and Ms. McGregor that there had been something wrong with her computer, that Mr. Rorison did not respond and that Ms. McGregor merely replied “oh.” It is improbable that the one would be silent and the other would merely say “oh” upon hearing such an allegation. That the grievor made such report at that time is made more improbable by what transpired when she spoke about computer problems in the post-competition interview. Ms. Shank responded by asking the grievor whether she had said anything at the time. According to Ms. Shank, the grievor’s response was “no,” or perhaps nothing. The grievor was recalled in reply to contradict the testimony of employer witnesses in another respect. She did not contradict Ms. Shank on this point, however. Given the adversarial stance she clearly took with the panel at the post-competition interview, it is improbable that she would have said “no” or nothing in answer to Ms. Shank’s question if she could have truthfully answered “yes.”

56I do not believe the grievor’s obviously improbable testimony on these two points. As a result, I am not prepared to treat her testimony in other areas as reliable where it is contradicted by the testimony of the panel members. Specifically, I do not believe her when she says the panel moved her on from question 2 to question 3 without first asking whether she was ready to do so. I do not believe that Mr. Rorison told the grievor anything at the post-competition interview about supposed prompting of other candidates, beyond what he admitted in his testimony. I accept the panel members’ evidence that there was no prompting beyond that, and that all candidates were similarly treated in this regard and that, accordingly, the competition was not flawed in that respect.

57I am not persuaded that the panel acted unreasonably in not giving the grievor three quarters of the possible marks for an answer that touched on but did not fully elaborate on just three of the four subject areas an answer was expected to cover (Question 5). I am not persuaded that the panel acted unreasonably in scoring her answer about training methods as they did (Question 10). More than one of the interview questions solicited information about pertinent experience. I am not persuaded that the panel’s approach to considering or evaluating experience was unreasonable. I am not persuaded that there is any pertinent negative inference to be drawn from the difference between the panel’s notes and the grievor’s recollections of what she said to them concerning her experience or seniority, nor from differences between the two panel members’ notes. Having regard to the administrative nature of the position, I am not persuaded that the panel acted unreasonably in giving weight to form as well as content in their marking of the candidates’ efforts in the memo test.

58As regards the grievor’s alleged computer difficulties during the software aptitude test, it is troubling that the grievor did not bring them to the attention of those conducting the test when they occurred. One of her explanations for having failed to do so is that she thought perhaps the other competitors’ computers were similarly configured. If such a belief is to be taken as plausible, then I must note that there is no evidence that the other competitors’ computers were configured differently than hers. The union bore the onus of establishing that the grievor was disadvantaged relative to the other candidates in this regard, and if the grievor’s supposed belief was plausible then the union failed to discharge that onus in this regard.

59On the other hand, if no such proof was necessary because it is so obviously and inherently implausible that all of the computers were set up as the grievor’s testimony suggests hers was, that rather undermines the credibility of that particular one of the grievor’s explanations for her having not reported the problems when they occurred at the time. Another of her explanations, inconsistent with the first, was that she thought the problem was a technical one having to do with how the computer had been set up and did not believe that either Ms. McGregor or Mr. Rorison could fix it themselves. Whether she was right about their technical acumen or not is entirely beside the point.

60If the grievor brought her alleged software problems to the attention of those supervising the test when they occurred, they could have seen whether the software was throwing an error message and, if so, noted what it was she was doing when it did that. They would have been in a position to call for the assistance of someone with the ability to fix anything that needed fixing if they were unable to do that themselves. If no such person was readily available, they would have been in a position to arrange to have all of the candidates’ computers looked at as soon as possible after the test and, if it then appeared that there were difficulties with the software on any of the computers, to rerun that part of the competition for the affected candidates, or all candidates, prior to deciding who should be awarded the positions.

61The grievor has no apparent problem speaking her mind when she chooses. During the hearing it was necessary to instruct her more than once that her function as a witness was simply to answer the questions actually asked, and only those questions, and not venture on to address matters not directly raised by those questions. She had complained without apparent difficulty about a computer problem when it had occurred during a previous competition. Assuming in her favour that something did occur during the test in issue here that she suspected or ought to have suspected was the result of a computer or computer software defect, her conscious decision not to say anything about it until after the outcome had been announced created unfairness for the other candidates as well as the employer if, as the union contends, her untimely report of computer difficulties should result in my altering the result of the competition. For those reasons even if the report is believed, the grievor’s delay in making it is reason not to act on it in that way.

62There is a further reason not to change the result of the competition on the basis of this belated report of computer difficulties: on the evidence before me the result of the competition would have been no different if there had been no such difficulties. If the candidates’ marks on the software aptitude test are ignored, it is clear from the candidates’ marks on the other parts of the competition that the successful candidates were demonstrably more qualified and able. Their marks on all aspects of the competition would also show them demonstrably more qualified and able than the grievor even if a perfect score was substituted for the grievor’s actual score on the software aptitude test. I note that there was no attack on the grievor’s actual score as an inappropriate or unreasonable response to what she actually handed in, whether in an absolute sense or by comparison with the marking of the other candidates’ submissions.

63Having regard to the grievor’s general lack of credibility, I doubt whether there was a difference between the grievor’s actual score on the software aptitude test and what the panel told her about her score during the post-competition interview. If, however, one of them did tell her she got 23 on the software aptitude test (rather than on the memo test, on which she did get that score), I am satisfied that the error would not have been deliberate or the result of bias or other impropriety.

64For those reasons this grievance is dismissed.