GSB# 2006-0820

UNION# 2006-0546-0021

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Rebello)

Union

• and -

The Crown in Right of Ontario (Ministry of Finance)

Employer

BEFORE

Joseph D. Carrier

Vice-Chair

FOR THE UNION

Serge Linarello Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

Julie Legault-Hockley Labour Relations Consultant Ministry of Finance

HEARING

July 24, 2007

WRITTEN SUBMISSIONS

August 14, 2007.

Decision

On or about February 16, 2006 the Grievor, Eremita Rebello, grieved that she had been improperly denied a position as a Collection Officer (OAG10) in the Revenue Collections Branch of the Ministry of Revenue.

The Grievor has, in the meantime, successfully attained that position. In the circumstances, the case before me relates only to the damages she might have incurred between the date the position was awarded to the successful candidate and the date she was ultimately placed in a similar position.

A competition was run for three OAG 10 positions in accordance with the provisions of Article 6 of the Collective Agreement between the Employer and OPSEU. In order to determine or select successful candidates, the Employer amongst other things ran a competition which included interviews with the nine candidates as well as written tests. There was a threshold set by the Employer of 50% of the total mark possible. Of the nine candidates only three scored above the threshold. The Grievor was not only not among those three she was the sixth ranked among the nine candidates. Furthermore, her total mark of 37.5% was a full fifteen lower than the 52.5% mark achieved by the lowest of the three successful candidates. Of the nine candidates, the three with the highest scores including the candidate with 52.5% were awarded the three positions of OAG10.

There is no allegation that the competition was run in bad faith or that the Grievor was discriminated against by the Employer. Furthermore, there is no allegation that the process used to select successful candidates was not equally applied to each of them. Rather, it was the Grievor’s view that she ought to have received higher marks on the test than she achieved. Of course, had she received sufficiently higher marks she would have been among the successful candidates.

THE DECISION

I have considered the Agreed Statement of Facts which were submitted jointly by the Parties in this case. I have also considered the Grievor’s view that she was given lower marks than she felt were appropriate to her answers. However, absent evidence that the tests were inappropriate or that the Grievor was somehow discriminated against with respect to the manner in which the tests were applied or administered, there is no basis upon which I could set aside the scores achieved by the various candidates. There was no allegation of bad faith or discrimination with respect to the tests or the testing; there was only the Grievor’s view that she ought to have received higher marks for her answers. Aside from the fact that the Grievor failed to achieve the threshold set by the Employer (a significant but not conclusive fact), her test results were 15% lower than those of the lowest of the successful candidates. She, therefore, could not in any way be considered relatively equal to that candidate or any other successful candidate with respect to the position. Indeed, a 15% differential based upon a test of relative equality as set out in Article 6.3 of the Parties’ Collective Agreement is significant.

In the circumstances, there is no basis upon which the choice of any of the successful candidates could be set aside in favour of the Grievor. The grievance is therefore dismissed.

Dated at Toronto this 24th day of August, 2007.