GSB# 2002-1243

UNION# 2002-0154-0014

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Smith)

Union

• and -

The Crown in Right of Ontario (Ministry of Northern Development and Mines)

Employer

BEFORE

Loretta Mikus

Vice-Chair

FOR THE UNION

Gavin Leeb Barrister and Solicitor

FOR THE EMPLOYER

Suneel Bahal Counsel Ministry of Government Services

THIRD PARTY

Stephan Poulin

HEARING

January 12 & 13, April 29, September 15, 2005; August 28, 2006; March 30, June 1, 2007.

Decision

In January of 2002 the grievor, Robert Smith, applied for the position of Northern Development Adviser - Business/Industry. He has grieved the fact that he was not granted an interview for the position, contrary to article 6 of the collective agreement. He asks that he be placed in the position and be compensated retroactively for all lost benefits, salary and entitlements.

Mr. Stephan Poulin was the successful candidate. He attended the hearing and participated on his own behalf.

The relevant provision of the collective agreement reads as follows:

6.3.1 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.

THE FACTS

The purpose of the position of Northern development Adviser-Business/Industry is described in the job specification as follows:

Enhance the development and delivery of government programs, policies and projects; the provision of sectoral expertise for various levels of government, business and industry to improve sustained economic growth and productivity in Northern Ontario.

The duties and responsibilities are numerous and include establishing linkages and maintaining ongoing relationships with forest products, mining, agriculture, tourism, business/industry, aboriginal and other sector stakeholders to develop networks in order to provide strategic advice to senior management in government on issues affecting the various sectors; working with sector and government stakeholders and other partners to stimulate economic growth and development; providing advisory and consultative services for public and private sector partners to develop economic projects by analyzing and interpreting data, undertaking feasibility analysis, negotiating cost-sharing agreements and fostering public/private sector partnerships; designing and planning studies and surveys to the developments of strategies related to sector specific activities such as analyzing and interpreting material related to the developmental impact on Northern Ontario; reviewing and providing input on the impact of government policies and programs in Northern Ontario; providing advice and assistance in the development and implementation of economic development policies and programs by identifying and obtaining data and other relevant information; undertaking primary research and analyzing data and information to identify key policy issues: developing and maintaining knowledge of economic base in geographic area and providing information and advice on sector and economic development issues to enhance economic activity and productivity in Northern Ontario; liaising, facilitating, supporting and working with stakeholders on economic development initiatives and conducting workshops, preparing educational materials and seminars on business planning, program guidelines; provide leadership organization development volunteer management and sectoral strategies; planning and coordinating the work of the external consultants and staff; coordinating delivery of sector related programs by the development of policy and guidelines; preparation of contracts; management of budget; liaising with line ministries; managing issues and exercising signing authority; undertaking assignments and projects covering a variety of subject matters including responses to public inquiries from companies and associations; representing the Ministry and branch at sector events and stakeholder meetings; preparing briefing notes and interacting with other team members to enhance competitiveness in Northern Ontario.

Under the category of Skills it was stated:

Skills to identify data and information such as global trends in tourism, mining, forestry, agriculture, business/industry, aboriginal sector and assess the scope and nature of research required, gather, organize, consolidate, interpret and assess the implications/significance for the business and/or economic sectors.

Skill to identify options and recommendations for project proposals including telecommunications, mining technology, resource products, value-added in manufacturing, exporting, agriculture while taking into account policy guidelines, financial, legal, economic, social, environmental, strategic and audit considerations, as well as potential economic benefits/impacts to the industry/community clients.

Project planning/coordination skills; applied research techniques and investigative techniques; skills with personal computer operation and software; excellent oral and written communication skills to provide/exchange information, make presentations, chair meetings and communicate with clients to resolve problems, as well as compose letters, submit technical reports and presentations; interpersonal skills to carry out work area teams; good negotiating skills to assist in negotiating partnership agreements; strong planning and organizational skills to coordinate concurrent projects to work consultants; leadership skills to meet activities with stakeholders and task teams.

The job specification included a Freedom of Action section requiring the ability to work in a geographically dispersed environment organizing and prioritizing the workload to ensure completion within established time frames; determining research and development initiatives, and initiating specialized research, interpreting and analyzing data, making decisions regarding information provided to clients and/or Ministry, determining client eligibility for programs; insuring compliance with established guidelines; representing the Ministry at internal and external forums such as the Tourism Sector, Chamber of Commerce, municipal meetings and policy forums representing the Ministry and the government.

It was also stated that the position required knowledge of economic principles and economic/business client conditions to establish stakeholder linkage to provide policy advice to senior management. The incumbent would undertake economic analysis, evaluation of submissions/proposals and business cases, monitor projects, recommend payments, undertake post project evaluations, analyze data and information to identify key policy and program issues, promote, market and deliver government programs, provide specialized sectoral advisory and consultative services to public and private partners.

The grievor believed his past experience qualified him for this position. He began working in 1981 for the Ministry of the Environment as an Environmental Technician in the Timmins office. His job duties included administering the Environmental Protection Act, the Pesticide Act, the Ontario Water Resources Act and acting as compliance officer for municipal and industrial activities in the Timmins District.

From September 1984 to December 1993 he was a Community Development Economist for the Ministry of Northern Development and Mines in Sudbury. This position was the precursor of the Northern Development Advisor position at issue in the instant grievance. As a CDE he was the leader of the Ministry’s area teams in the delivery of capital and operating programs concerning water and sewage infrastructure, tourism infrastructure and recycling programs. He assisted municipalities and other quasi-municipal organizations in designing strategic plans for community and economic development. He provided project-management for capital and operating grants, prepared terms of reference, processed requests for payment, participated in estimates and year-round reconciliations, provided technical reviews for large-scale highway and environmental assessments and municipal restructuring. He administered grant programs for small manufacturers and non-profit organizations as well as the Northern Ontario Training Opportunities Program.

From January of 1994 to April of 2000 he was an Intermediate Environmental Planner for the Environmental Assessments and Approvals Branch of the Ministry of the Environment. He established and coordinated environmental assessment review teams, provided project management for the evaluation of applications/submissions and reparation of environmental assessment reviews. His project scope included reviews of municipal landfill sites, uranium mine tailings, environmental assessments, terms of reference and environmental assessment approvals under the Act.

He was declared surplus in 2000 and elected to work out his notice and preserve his two-year recall right. By then he had been employed with the government for more than 20 years and was close to retirement. He wanted to finish out his career with the government and retire on his pension. He also enjoyed his work and felt he still had much to contribute. He was given a contract unclassified position from September 2000 to March 2001 as a Senior Environmental Officer in Sudbury and was responsible for inspecting and investigating complex municipal, private and industrial facilities for compliance with various approvals and provincial environmental legislation, reviewing waste management approval proposals and preparing comprehensive inspection reports including recommending remedial and legal action In October of that year he obtained a similar position in Sault Ste. Marie and in March of 2002 he received a contract for the same position in the Windsor office. He was successful in a competition for the classified position of Senior Environmental Officer in North Bay in December of 2002.

Ms. Anne Marie Leroy testified for the Employer. She has been employed in the OPS for 14 years and is currently a Northern Development Adviser (NDA) in the Temiskaming/Temagami region and is the coordinator of the Northeastern Ontario Northern Development Council. As an NDA, she is responsible for consulting with business and agriculture organizations within her sector. She supervises the delivery of programs for approximately 20 partner agencies in the federal, provincial and private sectors and directly works with businesses and their clients to obtain funding for new enterprises, which also involves providing whatever intelligence, tools or research, are necessary to maintain these operations. She assists in the expansion of business in the region and participates in provincial committees to consider strategies for industry in the north. She consults with local businesses as a training adviser to support the expansion of sectoral businesses such as call centers. She also assists in seeking financial assistance for the infrastructure.

Before that she was the acting manager for the industrial sector team from Temiskaming in the north to Muskoka in the South. She was also manager of the industrial sector in North Bay, Sturgeon Falls and Muskoka and supervised between 8 and 11 staff members. She handled the administrative functions of the office and managed a budget that included $60 million for the Northern Heritage Fund. She was required to ensure that Ministry partnerships met their objectives and held meetings annually with various ministries to monitor their success. She and her staff oversaw between 15 to 21 trade shows internationally and assisted with efforts to access new programs, such as exploring new exports to border states. Before that she had responsibility for all recruitment in the area for her team as well as other teams in the region.

Prior to those job responsibilities she had been a Community Development Economist (CDE) in Temiskaming for almost 4 years before the restructuring that culminated the NDA position. As a CDE she was responsible for consulting the business community in Temiskaming which, at the time, had been going through the closure of two mines and a loss of 1200 jobs. She helped the community deal with the consequences of those closures, including the impact on the infrastructure. She acted as coordinator between the federal and provincial committees that had been assigned to assist with the impact on the community. Much of her assignment involved dealing with municipalities, not-for-profit businesses and the local Chambers of Commerce.

In the early and mid-1990’s the staff of the industrial development offices with Northern Development and Trade were transferred to the Ministry of Northern Development and Mines into the Northern Industry Division. She was acting manager at the time of the restructuring when the position of the economist was reclassified to that of Industrial Development Officer and then, ultimately, Northern Development Adviser. At the time the government of Ontario had a Northern Development Corporation that was focused on reviewing business plans for funding on a local level. Its primary concern was funding. During that time an economist with the government dealt with consultants in considering business opportunities and programs. They worked with consultants in their liaisons with municipalities and local committee and partnership agencies. They worked to ensure municipal access to studies with respect to infrastructure funding to better position them to attract and expand business in the north. It was the consultants who did the research. Today their liaisons are with clients who have done their own research. For example a client who was introducing a new product would seek more information from the sectoral staff and review business plans on file.

It was her evidence that the position has changed significantly since then. The Ministry has directly transferred specialists in six areas involving varying skill levels. In restructuring the position they looked at the University of Waterloo’s two-year Economic Development course as its model and all CDEs were required to take the course to ensure a minimum level of current economic development knowledge. Not only did the structure of the position change but the requirements and expectations of the new Northern Development Adviser did as well. They were now expected to operate with an increased level of knowledge and their main focus was no longer municipalities and not-for-profit businesses but rather lead agencies and businesses and government staff who were specialists in analyzing business plans. Clients investing in a new product or market need to be confident that they are considering a viable business plan.

Ms. LeRoy conducted the job competition at issue in this grievance. She did not know the grievor before the competition and only became aware of his past experience through his covering letter and résumé in response to the job posting. She was provided with the job posting, the selection criteria, and the names of the applicants and the dates of their applications. She did not know who prepared the selection criteria which, were listed as follows:

30% demonstrated research and analytical skills and programs/service delivery skills to support growth and development in business and industry and other economic sectors related, but not limited to, value-added manufacturing products and industrial opportunities.

30% well-developed communications, advisory, presentation, interpersonal and customer service skills to work with individual groups and organizations to deliver programs and enhance economic/social benefits to communities.

15% demonstrated successful experience working independently and participating on multi-disciplinary teams.

10% sound knowledge of Northern Ontario economy.

10% thorough knowledge of the government's economic development programs and practices.

5% good understanding of government organizations, structure and processes.

There were more than 100 applicants and it was decided that they would interview as many applicants as they could complete in one day. The selection committee agreed they would interview the top five candidates who received more than 3.5 out of 6 on a comparison of the selection criteria. Ultimately they interviewed six applicants because, when contacting the successful applicants, an individual who only scored two out of six was incorrectly included. It was decided that it would be unfair to deny him an interview in the circumstances.

Ms. Leroy applied the scores set out in the selection criteria against the applications and their résumés. The grievor scored 2.5. He received no points for the research and analysis portion. Ms. LeRoy did not believe his résumé indicated he had the skills necessary for the position. He received half of a point for his communication skills. Although his résumé outlined his experience doing presentations and his liaisons with clients, Ms. LeRoy had concerns about the quality of his communication skills because of grammatical errors in his resume. He was awarded ½ a point for working with and for teams based on his proved ability to work with partners in the past. He was given another 1/2 point for his understanding and knowledge of the northern Ontario economy but nothing under the heading of knowledge of government economic development programs and practices. He did not refer to any government programs in his application that related to this job in particular. There was a list available of more than 20 programs the government was managing at the time and he should have accessed them on line and referred to them specifically in his application. He did not detail programs he had knowledge of or had worked on in the past. That was important to Ms. LeRoy because the expectation was the successful candidate could immediately assume responsibility for those programs and provide a high level of service to the clients. The grievor was given a full point for his understanding of the government. It was obvious that his work in the past included working with government agencies within a government structure in various ministries.

Overall, in comparing the resumes of the applicants, Ms. Leroy found the grievor’s information difficult to assess. He noted that he had been involved in several functions and programs but never stated with precision what he had actually done in relation to that involvement. He was vague about his skills. He noted his project management experience but did not highlight the skills used in the job. He noted his environmental background and experience in waste management but those activities did not relate to the position at issue. He noted that he had been a Community Development Economist but that experience was dated and not responsive to the new position. It had been a generalized position and now the duties required expertise in specific sectors. According to Ms. Leroy, she could only read into the resume what it said on its face and the grievor’s lacked the necessary information to allow her to give him a higher score.

In contrast, Mr. Poulin scored 5 out of 6 on the screening test. Ms. Leroy described his resume and covering letter as concise and thorough. He received a full point for his knowledge and experience of government programs and practices, in part because he had listed the various programs he was familiar with but also because Ms. Leroy knew the program he had worked on for the city of North Bay because it was funded and administered by her Ministry. As a result she knew his actual experience based on her knowledge of the specific program. He had been a Northern Development Officer and had experience dealing with local boards and agencies. He was given a full point for his research and analytical skills based on the fact he had achieved a Bachelor of Commerce degree from the University of Waterloo and Ms. Leroy had taken the same program and knew its content, therefore Mr. Poulin’s knowledge. As well, he had completed two other relate courses that Ms. Leroy judged to be valuable and related. Mr. Poulin also scored a full point for his communication skills. He was bilingual and liaised with others on an ongoing basis. He was computer literate and had prepared briefing notes. He was awarded a full point for his knowledge of the workings of the government. He had had extensive experience with the Ministry in North Bay and Parry Sound and it was clear from his resume that he was familiar with “government speak”.

On cross-examination Ms. Leroy agreed that she had not been provided with or considered the personnel files of the applicants. She did not recall being told to interview any OPS employees on lay-off who were minimally qualified but did recall being told that Mr. Smith had been surplused. She also conceded that although she and the grievor had been CDEs during the same period of time, she could not tell from his resume what actual skill levels he possessed because he had not outlined his qualifications, for example whether he was at the 1,2, or 3 level of the classification. Because she had been at level 4, she was personally aware of the work done at that level but was not sure about what was required at the other levels. She also agreed that she had not considered the grievor’s degree in geography as relevant to the requirements of the position. She was looking for a background in business and industry, not the environment, and that was her focus in scoring the applicants. She wanted specific reference to the actual job skills as they related to the position at issue.

SUBMISSIONS OF THE PARTIES

Mr. Leeb, counsel for the Union, advised the Board that the parties had agreed the first question to the answered by the Board is whether the grievor had been improperly screened out at the interview stage of the competition. If the answer to that question is yes, the parties will attempt to resolve the question of remedy. Failing resolution, the Board will reconvene to determine what remedy would be appropriate in the circumstances. It was the Union’s position that, if necessary, the Board should compare the grievor to the incumbent and, if warranted, directly assign him to the position.

It was the Union's position that the grievor’s application for the position had been scored improperly and that he should have received a score of 3.5 out of six. The assessment of his qualifications was incorrect. In the alternative, the screening process itself was fatally flawed. The onus, it was stated, is on the Employer to show that it complied with the provisions of the collective agreement. The evidence has shown it did not. It clearly demonstrated that Ms. LeRoy gave differential consideration to Mr. Poulin over the grievor and applied a different standard to assess their qualifications. She gave Mr. Poulin a point for his research experience based on the fact that he had bachelors of commerce degree. She testified that she had a similar degree and was aware of what that entailed. She also gave him credit for his knowledge of government programs because he had worked with municipal governments and she knew the work done at that level. She improperly credited him with factors not mentioned on the job competition, such as the fact that he was bilingual. However, when questioned about the grievor’s qualifications, she stated that she could only give him credit for what he had included in his written application and résumé. She allowed him no credit for his experience as a CDE, notwithstanding the fact that this new position had been based on that previous job description.

The results of the screening are proof of the flaws in the process. For example, Mr. Bushy only scored two out of six but was incorrectly given an interview and came in second during that phase of the competition. Mr. Charette, on the other hand, scored six out of six and came in last after the interviews. That suggests that the screening process had not accurately assessed the candidates.

The Union also took the position that the cut-off for the interviews was arbitrary. No explanation was given for the Employer’s decision to interview only those who scored 3.5 on the test. More importantly, the decision to interview 5 because they could completer five in a day was arbitrary and not related to the job duties.

As a final alternative, the Union took the position that the collective agreement requires the Employer to give preferential consideration to internal candidates. That preferential consideration flows from the seniority rights contained within the collective agreement. It was the Union's submission that the Employer cannot compare relative equality between an internal and an external candidate. Only if there are no qualified internal candidates, can the Employer consider outside applications.

It was submitted that Ms. Leroy had worked for several years as a Community Development Economist. She cannot claim to be unaware of the job duties. She was acting manager during some of the time the grievor was in the position and must have known what her staff was doing. She testified that there was no job posting for the new position of NDA and that the incumbents of the former position were transferred into the new position. There could not have been a significant change in the duties in these circumstances. It was a natural progression.

While she stated that she could only credit the grievor with what was written on his application documents, she was prepared to credit Mr. Poulin with certain qualifications simply on the basis of her personal knowledge of the courses he had taken. The grievor completed an honours degree in geography, which required analytical and research skills, but was given no credit for his degree. Ms. Leroy claimed that she was looking for specific examples of skills the applicants had applied in their past employment. A review of Mr. Poulin’s application material shows that he claimed to have specific skills without giving the particulars of his past work experience. Because the Employer opened the competition to external candidates, it was able to review the applications and choose the best candidate, which is not what is required under the collective agreement. It allowed the Employer to give more weight to Mr. Poulin’s credentials than the grievor’s, to the grievor's detriment. For example, when asked whether the job required skills related to policy development, Ms. LeRoy’s response was that they might be asked for input. However the job description specifically requires an NDA to identify policy issues. The grievor's experience in this area should have been worthy of credit during the scoring phase of the screening.

In support of its position the Union relied on the following cases: Tolmie and the Ministry of Health (1992), GSB # 975/91 (Saltman); Re Sydenham District Hospital and Service Employees Union, Local 210 (1992), 1992 CanLII 14441 (ON LA), 29 L.A.C. (4th) 370 (Brandt); OPSEU and Ministry of Community and Social Services (1999), GSB # 1785/98 (R. Brown); Re York-Finch General Hospital and Ontario Nurses’ Association (1993), 35 L.A.C. (4th) 258 (Burkett); Re Lakeport Beverages, a division of Lakeport Brewing Corporation and Teamsters Local Union 938 (2005), 2005 CanLII 29339 (ON CA), 77 O.R.(3rd) 543 (Ontario Court of Appeal); Re United Electrical Workers, Local 512 and Tung-Sol of Canada LTD. (1964), 1964 CanLII 1021 (ON LA), 15 L.A.C. 161 (Reville); OPSEU (McIlwain) and Ministry of Consumer and Commercial Relations (1990), GSB # 628/89 (Verity); Re Halton Adolescent Support Services and OPSEU, Local 262 (1994), 1994 CanLII 18657 (ON LA), 44 L.A.C. (4th) 129 (Simmons); OPSEU and Ministry of Correctional Services (2002), GSB # 1999/98 (D. Harris); OPSEU (Quan) and Ministry of Labour (1992), GSB # 1791/91 (Gorsky).

In the Quan case (supra), the Board’s function was to determine whether the requirements of the collective agreement had been met by the Employer. It determined that the employer had the onus to ensure that it had a sufficient factual basis upon which to make the comparisons required by the collective agreement in order to thoroughly and properly compare the qualifications and abilities of the competing applicants. At page 14, it referred to the case of Kuvntjes and Larman (GSB# 920/85) and stated as follows:

If the eventual decision about who gets a job is to be based on relative qualifications and abilities, it follows that all steps leading to that decision must also satisfy the requirement that they lead to valid and relevant information about qualifications and abilities being brought to the attention of the selection Board. If the prescreening decision screens out a better qualified candidate, the eventual decision cannot help but be faulty. Therefore, while there is clearly no right to an interview in the collective agreement, the nature of the eventual decision to be made requires the pre-interview screening begun in a comprehensive and fair manner.

The Board in the Quan case stated that it did not consider it necessary that the prescreening process be conducted in the same manner as the actual selection process. However, it did state that it was necessary that the prescreening resulted in “valid and relevant information about qualifications and abilities being brought to the attention of the selection board”.

In the instant case the Union asserted that the Employer’s failure to consider the grievor’s experience in a similar job must lead to the conclusion that the prescreening was faulty. The Employer cannot ignore information in its possession that bears directly on the grievor’s qualifications for the position. The job specification for the Community Development Economist specifically requires research and analysis skills. The job specification is equally clear that superior communication skills are required. The grievor should have received a higher score on both of these factors.

Finally, the Union contended that the decisions on scoring the selection criteria, the percentage required to qualify for an interview and the limit on the number of interviews were arbitrary and unfair. Ms. LeRoy was given six selection criteria to apply during the screening process. She assigned each of them one point, ignoring the value assigned to them by the person who crafted the criteria. No explanation or rationale was given for the decision to interview those who scored 3.5, or for the decision to limit their interviews to five people. These decisions were not based on factors relevant to the job at issue and resulted in a faulty screening process.

The Union asked the Board for a declaration that the grievor had been improperly screened from the job interviews. It reserved its right to renew its argument concerning the rights of internal applicants against outside candidates. The parties agree that it will be asked to determine the question of the appropriate remedy on the request of the parties.

Mr. Bahal, counsel for the Employer, agreed that the onus was on the Employer to show that the screening process in the instant case met the requirements of the collective agreement. The question is not whether this Board would have come to a different conclusion but rather whether the Employer acted reasonably in exercising its discretion. There is no obligation on the Employer to be correct in its assessment of the applicant's qualifications and skills, but it must conduct the process in a fair manner.

In this case, there were 109 applicants for one position. The Employer was entitled to develop a short list of qualified candidates to expedite the process. It decided that a score of 3.5 out of 6 was necessary. The goal was to limit the interviews to a number that could be completed in one day. Ms. LeRoy determined that each of the six selection criteria would be afforded one point and that candidates could receive a range of 1, ¼, ½ and 0, depending on the information contained in their application documents. Specifically, she compared Mr. Poulin’s data with that provided by the grievor and concluded that the grievor did not have the experience and skills necessary to qualify for an interview.

The grievor did have extensive experience in the environmental field but that experience had not given him the skills required by the position at issue. It was stated by the Union that he had done the job in the past and he should have been assumed to have the skills needed to perform it today. The Employer asserted that the position he had held in the early 1990’s was significantly different from the new position of NDA. It is the more expanded job duties of the new position that the grievor lacked the skills to perform.

It was submitted that the Board’s jurisprudence is clear; there is no absolute right to an interview. It is up to the applicant to ensure that he/she has put their best foot forward and has provided a prospective employer with all the information necessary to display his or her skills. Ms. LeRoy had to use the information provided to her by the applicants in comparing their qualifications. The Employer cannot be expected to interview 109 applicants and it was reasonable for it to develop a short list. The decisions made during the process were reasonable but the grievor did not meet the threshold. There will inevitably be a subjective element when people are being evaluated. As long as the conclusions reached are reasonable and fair, those evaluations are valid.

In support of its position the Employer relied on the following cases: OPSEU (Kuntz) and Ministry of Municipal Affairs and Housing (2002), GSB # 0058/97 (Kirkwood); Eugene Sleczandkowski and Ministry of Transportation and Communications (1991), GSB # 230/91 (Barton); Adamowicz and Ministry of Transportation (1991), GSB # 2296/90 (Kaplan), Tully and Ministry of Skills Development (1988), GSB # 1622/87 (Kirkwood); Boreski and Ministry of Natural Resources (1982), GSB # 256/82 (Swinton); OPSEU (Kuyntjes and Larman) and Ministry of Transportation and Communication (1987), GSB # 920/85 (Gandz); OPSEU (Jensen) and Ministry of Skills and Development (1987), GSB # 1041/86 (Ratushy); OPSEU (Bent) and Ministry of Transportation (1988), GSB # 0031/88 (Knopf) and Pino and Ministry of Education and Training (1995), GSB # 1236/94 (Kaplan).

In the Kuntz case the Board was dealing with grievances that alleged that the grievor had been improperly denied several positions. In considering the issue of the screening of the résumés and covering letters, the Board, at page 22, stated as follows:

… The Borecki decision points out that where there is a large pool of candidates for purposes of cost and efficiency it is not necessary to interview all of the candidates. They can be ranked in order that only more qualified candidates are interviewed. This principle would be equally applicable in a small pool, if the situation is as stated on page 20 of the Sauve decision:

…The award in Bent appears to say that the employer need not interview an applicant who does have all that minimum essential qualifications and abilities, if is apparent from the applicant’s that overall he or she is demonstrably less qualified and able than other applicants. Together these awards support the proposition that the employer need not interview someone would not be “in that running” even if everything claims in his or her job application work true.

Therefore, if there are qualified candidates, the Employer may look among the candidates in a bona fide manner for the more qualified candidates to assess further, always being mindful that he has the obligation to select the senior candidate if the candidate that year to be relatively equal. Therefore as it applies to this case, it Employer was entitled to rank the résumés in terms of qualified, marginally qualified and not qualify, and to interview only those who appeared to be qualified.

In conclusion, it was the Employer’s position that the grievor is simply a frustrated employee who unsuccessfully applied for a series of jobs and who did not take the time to ensure that his resume was aimed at the job in the posting. He was treated in a fair and consistent manner in relation to all of the other applicants. It cannot be said the screening process was flawed or that the thresholds applied were unreasonable or unfair. The grievance should be dismissed.

In reply, the Union reminded the Board that the grievor had been employed by the Government for 20 years and that he had spent 7 years in the precursor to the job at issue in this grievance. The evidence has shown that the CDEs at the time of the transfer became the current NDAs, including Ms. LeRoy. While the Union did not dispute the job had changed in the interval, it took issue with the evidence that Ms. LeRoy did not know what the grievor had done while he and she were CDEs. In fact, she was acting manager during some of that time and yet she claimed to be unaware of his job duties.

The Union agrees that the Employer is entitled to determine the criteria it intends to rely on in considering applicants for a position. In this case, it asserted, the Employer should have included past experience as a factor. The McIlwain, Halton and Tolmie cases recognized that related experience is a valid indicator of future success. The evidence is also clear that Ms. LeRoy did not treat all of the applicants equally. She was prepared to credit Mr. Poulin with points based on her knowledge of the position he had held with the city of North Bay and based on her personal experience with his university courses. On the other hand she refused to credit the grievor for his past experience or his university experience, largely because she claimed she was unaware of what he had done.

It was the Union’s position that the Employer manifestly failed to meet its onus to prove the process was fair and reasonable. It asked for a declaration to that effect and asked the Board to remit the matter back to the parties for resolution,

REASONS FOR DECISION

The issue before this Board is not whether the incumbent, Mr. Poulin, is more qualified than the grievor for the position of Northern Development Economist. The sole issue is whether the screening process utilized by the Employer to develop a short list for interviews was conducted in a manner consistent with the collective agreement. In order to determine that issue there are two questions for this Board to answer; first, was the process fair and reasonable and was the decision to screen out the grievor consistent with the collective agreement; and, second, was the grievor scored properly during the scoring portion of the screening?

The GSB's jurisprudence on this issue is clear. An employer does not have to interview all applicants for a position and is entitled to develop a short list based on relevant criteria. In the Kuyntjes and Larman case the Board said, at page 6, as follows;

… Therefore, while there is clearly no right to an interview in the collective agreement, the nature of the eventual decision to be made requires that the pre-interviews greening began in a comprehensive and fair manner.

In the instant case there was a thorough screening of the candidates against a pre-established set of criteria which were reflective of the job requirements. It was not, in our view, unreasonable of the selection panel to draw the line at six candidates to be interviewed and to deny the grievor interview. The interviewed does who scored highest on the established criteria as well as those who were the most senior among the next tier of qualified applicants. Their decision as to who should be interviewed was influenced by their prior knowledge of individual candidates plus some additional knowledge of the type of work they would have been involved with in the positions they had held. In our view this is a perfectly reasonable way them going about a pre-screening process. …

Applying those principles to the instant case, the Employer was entitled to prepare a short list of applicants to avoid interviewing all 109 and, in doing so, was entitled to develop its own process to accomplish that end. It determined what criteria were relevant to the job and assigned them a value ranging from 30% to 5%. Those criteria are relevant to the position duties and it was not unreasonable for Ms. LeRoy to apply those criteria to her pre-screening process. She decided to give each criterion the same value that is one point, which was also not an unreasonable or unfair assessment in the circumstances. It was argued that there had been no rationale given for the decision to interview those who scored at least 3.5 out of 6 and to limit the interviews to a number that could be completed in one day. Those decisions were based on the Employer’s assessment of the most efficient and expeditious course to take to complete the selection process. I do not find that was an unreasonable conclusion in the circumstances.

That brings me to the second question, that is, was the grievor scored properly during the prescreening test. Ms. Leroy stated that she did not have any Knowledge of the grievor’s past work experience and had to rely solely on his written documents. She did know, however, that he had been an OPS employee who had been surplused and that he had worked as a Community Development Economist for seven years. She also knew or should have known what his experience had been in that position. She occupied that same position for a period of time and she was acting manager during some of that time. She was prepared to apply her own personal knowledge of Mr. Poulin’s work experience without reservation but refused to give the grievor the same consideration. The job specifications for the Community Development Economist required an incumbent to perform complex economic analysis of a specialized nature to stimulate economic development, growth and diversification in a number of sectors. He/she performed in-depth analysis of complex economic data to determine public sector strategies and investment opportunities. He/she was required to have an understanding of economics, business practice and community development. He/she needed strong communication and working abilities to communicate with a multidisciplinary development team. He/she were required to prepare reports and memoranda, draft correspondence related to projects and prepare speech material for senior officials. The information in the grievor’s letter should have raised some interest in Ms. LeRoy’s mind about his skills to perform the duties of the job. She might have had concerns about the length of time that had elapsed since he had been a CDE but she should have recognized that the job duties he had performed during that time did satisfy some of the criterion regarding research and analytical skills. If she had questions, she made no effort to satisfy herself that she had made the right decision. I would have given the grievor ½ a point for his research and analytical skills.

Another area of the scoring that I find problematic concerns the ½ point the grievor was given for his “demonstrated successful experience working independently and participating on multi-disciplinary teams”. In her evidence Ms. LeRoy stated that the grievor had worked with partners, had proven his ability to work on a team with other ministry teams and had liaised extensively with municipal, business and other agencies as a CDE. And yet he only received ½ a point. Mr. Poulin, on the other hand was awarded a full point. I would have awarded the grievor a full point as well.

Mr. Poulin received a full point for his communication skills while the grievor received ½ a point. The sole area of concern to Ms. LeRoy seemed to be grammatical errors in his application. While I agree that a poorly prepared resume might weigh against an applicant, in this case I believe her concerns were overstated. It is my opinion that her issues about the application were more a matter of form that content. His application contained numerous references to his past experience writing reports, corresponding with clients and ministry personnel, liaising with various sector partners, chairing and participating in meetings and conferences. Although the scoring matrix was designed to recognize 1/4, 1 /2, 3/4 and 1 points, I note that applicants were awarded ½ or 1 point only. In the circumstances I would not alter Ms. LeRoy’s score of ½ for this criterion.

I also question the fact the grievor received no credit for his knowledge of the government’s economic development programs and practices. In his application he referred to his past experience delivering programs that represented the government’s policy and practices and claimed an ongoing familiarity with the economic development programs of the provincial and federal agencies related to job creation, business growth and new business development. Again, I appreciate that he did not refer to any specific program directly; nevertheless his past work in the field should have been recognized.

There is no need for me to go further. I find that the grievor was incorrectly assessed during the screening process and that, had it been done properly, he would have achieved a score of 3.5 or better and been granted an interview. The grievance succeeds. The matter is referred back to the parties for resolution. If they are unable to reach a resolution, they are to contact the GSB for additional dates for further submissions.

Dated at Toronto this 19th day of December, 2007.