GSB#2008-2382
UNION#2008-0714-0001
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Andraychak)
Union
- and -
The Crown in Right of Ontario (Ministry of Children and Youth Services)
Employer
BEFORE
Randi H. Abramsky
Vice-Chair
FOR THE UNION
Jim Gilbert Ontario Public Service Employees Union Grievance Officer
FOR THE EMPLOYER
Caroline Cohen Labour Practice Group Ministry of Government Services Counsel
HEARING
October 5, 2010.
WRITTEN SUBMISSIONS
October 14, 2010, October 18, 2010, October 19, 2010.
DECISION
1The grievor, Janet Andraychak, contests the results of a competition for the position of Probation Administrative Support in the Probation Services Branch of the Ministry of Children and Youth Services. Although she has less seniority than the successful applicant, the grievor asserts that she “lost a competition because it was conducted inappropriately.” At this point, she does not seek appointment to the position but seeks lost wages from the date the position was filed, May 18, 2008, until she obtained another satisfactory position in February 2009. It is the Employer’s position that the grievance should be dismissed.
FACTS
2The parties presented this case through documents and argument only. No witnesses were called by either party. The parties agreed that if there was a factual dispute which was material and required evidence, they would provide evidence on it.
3On March 20, 2008, the Ministry posted for the position of Probation Administrative Support in its Thunder Bay office, with a closing date of April 7, 2008. On March 28, 2008, Ms. Andraychak applied for the position, sending in a cover letter and her resume for consideration. On the same date, Ms. Maggie Aalto, the acting incumbent, also applied for the job, submitting her letter and resume. At the time of their application, Ms. Andraychak had approximately one year of seniority while Ms. Aalto had a seniority date of 1994.
The posting described the job as follows:
You will type correspondence, reports and documents, provide telephone and reception duties in addition to maintaining client and office files. As the key operator for the youth offender information tracking system, you will enter and check computerized data, liaise with other offices, courts, and relevant stakeholders to exchange information and distribute mail and messages appropriately.
Qualifications: proven administrative experience including knowledge of the Youth Criminal Justice System and relevant legislation proven ability to use computer software (word-processing, email and database) with excellent keyboarding skills, good communication and interpersonal skills required to respond to inquiries and provide effective customer service to clients using tact and diplomacy while maintaining client confidentiality; proven ability to organize, set priorities regarding own workload and work under minimal supervision.
The Position Specification is more detailed, but the key duties are listed in the posting.
4There were six selection criteria used to evaluate the applicants – (1) proven clerical and administrative experience including knowledge of administrative functions, procedures and policies (20%); (2) working knowledge of the criminal justice system and relevant legislation (15%); (3) good communication skills in order to be able to effectively communicate with clients, parents, lawyers, ministry officials, court staff, using tact and diplomacy while maintaining client confidentiality (20%); (4) proven ability to organize and prioritize own work and work under minimal supervision as the probation manager is frequently away from the office (20%); (5) proven ability to use fully programmable word-processing equipment, applications and operations i.e., Word, Email, Youth Offender Information Tracking System (15%); (6) excellent typing/keyboarding skills (10%). The Union did not contest the selection criteria or the weight afforded to each criterion.
5Both Ms. Andraychak and Ms. Aalto were interviewed for the position, along with three other individuals. There were two interviewers, not three as indicated in the letter advising Ms. Andraychak of her interview. One was Ms. Andraychak’s supervisor, Ms. Lisa Simmic. The other was Ms. Aalto’s supervisor, Ms. Kelly Turek. Ms. Aalto had been acting in the Probation Administrative Support position since September 2007.
6The competition consisted of an interview with eight questions, a data entry skills test and a written prioritization test. The interview was worth 70%, the priority test 15% and the data entry test 15%. In addition, references, including a reference from the applicants’ current supervisor, were checked before the competition was closed. No numerical weight was given for the references. Personnel files and performance appraisals– to the extent that they existed – were not reviewed.
7My review of the questions establishes that were all job-related to the position, and the Union does not challenge the questions asked. Instead, it challenges the scores received by the grievor and the incumbent. It asserts that the grievor was repeatedly underscored while the incumbent was overscored, especially by the incumbent’s supervisor Kelly Turek.
8The following chart reveals the scores issued by Ms. Turek and Ms. Simmic for both Ms. Andraychak and Ms. Aalto:
Kelly Turek Lisa Simmic
Grievor
Ms. Aalto
Grievor
Ms. Aalto
Question 1
9/10
6/10
10/10
6/10
Question 2
8/10
9/10
10/10
9/10
Question 3
17/20
12/20
16/20
12/20
Question 4
10/10
10/10
10/10
10/10
Question 5
7/10
10/10
10/10
6/10
Question 6
8/10
9/10
6/10
6/10
Question 7
10/10
6/10
9/10
6/10
Question 8
1/5
5/5
2/5
5/5
9A review of the test scores by Ms. Simmic and Ms. Turek show substantial similarity, overall, in their evaluation of the applicants’ answers, and no marked favoritism toward Ms. Aalto. In Ms. Turek’s case, she scored Ms. Andraychak higher in three questions for an extra 12 marks; scored them the same once; and scored Ms. Aalto higher in four questions for an extra 9 points. Similarly, Ms. Simmic marked the grievor higher in five questions for an extra 16 points, marked them the same twice, and gave Ms. Aalto higher marks in one question, for an extra 3 marks. In addition, Ms. Simmic and Ms. Kelly marked Ms. Aalto identically in six questions. They marked her differently on only three questions, for a total of seven marks difference in total. They marked Ms. Andraychak the same one time, within 1 mark difference on four questions, within 2 marks in two questions, and 3 marks difference on only one question. On these scores, without further evidence, I cannot conclude that Ms. Turek or Ms. Simmic improperly marked either Ms. Andraychak or Ms. Aalto.
10The Union referred to the number of checks next to the prescribed answers to establish that the marking was improper. A review of the scores and the check marks shows there was no 1:1 correlation between the checks and the scores given. For example, in question 5, Ms. Simmic had every point checked for Ms. Aalto’s answer, plus a number of points listed in the “comment section”, yet gave her a score of 6/10, apparently because there was “too little detail.” In question 1, Ms. Turek had only one point checked on the grievor’s answer, yet gave her a score of 9/10. On some questions, there is more than one check mark per item on a prescribed answer. On some questions, there are less checks than the mark. Conversely, on some questions, there are more checks than the mark. Based on the documents, which was the only evidence submitted, there simply is no 1:1 correlation between the interviewer’s check marks and the applicants’ scores. There is no evidence to support the Union’s contention that Ms. Andraychak should have received an additional 14 points from Ms. Turek and an additional 11 points from Ms. Simmic. It should be noted that the additional points suggested by the Union would lead to Ms. Andraychak receiving a score of 84 points from each interviewer out of a possible total of 85. Likewise, there was no evidence that Ms. Aalto’s score should be lowered.
11In terms of the data entry test, the evidence showed that the grievor made four errors, which resulted in a score of 16, or 80%, while Ms. Aalto made two mistakes, for a score of 18 or 90%. Ms. Aalto was given a score of 10, or 100% on the prioritizing test, while the grievor received a score of 9 or 90%. Why there was a difference in the scores is not clear on the documents. There was no evidence presented as to why Ms. Andraychak was rated a 9. Her test document does look like a 10 was changed to a 9, but again, there was no evidence presented about it. The instructions state that “there is not necessarily a right or wrong answer.” It continues: “What is important and what the marking will be based on, are the reasons for which you have made your decision.”
12The results of the competition were close. On the interview questions, the grievor did better than Ms. Aalto, receiving 73 points from Ms. Simmic and 70 points from Ms. Turek, while Ms. Aalto received 60 points from Ms. Simmic and 67 points from Ms. Turek. The two scores were averaged and then weighted to 70% of the hiring decision. Their weighted interview scores were then added to their weighted results on the data entry and prioritization tests, leading to the result that the grievor received a final score of 85% and Ms. Aalto received a score of 82%.
13The Ministry, at stage 2 of the grievance procedure, provided a document that did not weight the scores, but considered them all equally, which resulted in the grievor having a total of 85 points compared to Ms. Aalto’s score of 78 points. The Union, relying on this document and particularly the interview scores alone, asserted that this difference showed that the grievor was superior by a substantial and demonstrable margin. This document, however, gave the grievor an extra point from the score actually issued by Ms. Turek, but more importantly, it is inaccurate because it did not reflect that the Ministry weighted the different parts of the competition process. Finally, the competition was not based solely on the interview scores.
14Nevertheless, the Ministry, because the overall scores were very close, decided to do a second round of interviews – solely with Ms. Aalto and Ms. Andraychak. In my view, this was improper. Given how close the scores were, Ms. Aalto, by virtue of her seniority, was “relatively equal” to the grievor and should have been awarded the position. After the second interview and checking references, the position was awarded to Ms. Aalto.
15The Union contends that the fact that the Ministry chose to conduct a second interview reveals that they did not consider Ms. Aalto to be “relatively equal” or they would have, and should have, awarded her the position. The Employer, however, is not relying on the results of the second interview. Instead, it relies solely on the first interview. The Union, likewise, primarily based its contentions on the results of the first interview. Consequently, I conclude that I need not address or consider the second interview.
16After the second interview, the references of both Ms. Andraychak and Ms. Aalto were contacted and reviewed. The reference from the grievor’s supervisor, Jamus Dorey, was thorough and very positive. The reference from Ms. Aalto’s supervisor, Michael Wells, was very brief, but supportive. A second reference, from an Acting Manager in the Probation Office, was very positive.
17No personnel files or performance appraisals were reviewed. The Union asserts that this was a fundamental flaw, but did not provide those appraisals or personnel file at the hearing. At the time of her application, Ms. Andraychak had recently – approximately a month before the competition - become a classified Income Support Clerk with the Ministry of Community and Social Services. Her resume showed that she had a number of contract positions with various Ministries - a contract position, beginning in January 2008 as a Receptionist/Mail Clerk with the Ministry of Transportation, a contract position as a Client Services Representative with the Ministry of the Attorney General, from July 2007 to December 2007, and as a Court Reporter, since April 2006. Prior to that she worked as a secretary or administrative secretary from July 1999 to March 2006 for the Thunder Bay Regional Health Sciences Centre in different capacities. Prior to that, in the early and mid-1990’s, she worked in contract positions in the Ministry of Community and Social Services and the Ministry of Transportation. Her work experience before that was not with the provincial government. There was no evidence that Ms. Andraychak received performance appraisals in her contract or unclassified positions. She may well have, but there was no evidence to that effect.
REASONS FOR DECISION
18In light of the grievor’s seniority, the Union must establish, on the balance of probabilities, that the grievor’s qualifications and abilities in relation to the required duties of the position in dispute exceed those of the senior applicant by a substantial and demonstrable margin. Re OPSEU (Suave) and Ministry of Transportation, GSB No. 1695/81 (Gray). In this case, although the grievor no longer seeks to be appointed to the position, she is seeking compensation. To be awarded such compensation, the Board must find that the grievor’s rights under Article 6.3 were violated, and that she should have been awarded the position.
Article 6.3 provides:
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 this case, because the grievor has less seniority than the successful applicant, Ms. Aalto, she must establish that her qualifications and ability to perform the required duties were superior by a substantial and demonstrable margin. If Ms. Aalto’s qualifications and abilities were “relatively equal” to those of Ms. Andraychak, then Ms. Aalto was entitled to the position under Article 6.3.
19After carefully reviewing the documents presented by the parties, their arguments and the case law presented both at the hearing and after, I conclude that the Union did not sustain its onus in this case, and that the grievance must therefore be dismissed.
20The Union’s main complaint centred on the scores that the grievor received during the interview. In the Union’s view, Ms. Andraychak should have been scored 84 (out of 85) by both Ms. Simmic and Ms. Turek, for an additional 25 points, while Ms. Aalto should have been scored a 51, rather than 60 and 67. The only evidence submitted to support this contention was the score sheets of the two applicants.
21As noted above, my review of the score sheets, standing alone, does not reveal that there was improper scoring by Ms. Turek or Ms. Simmic in relation to either the grievor or Ms. Aalto. There were far more similarities in the scores issued to both candidates on individual questions than differences, and the differences between them, with some exceptions, were relatively minor. There was no allegation or evidence presented of bias. There was no evidence that a check mark necessarily equalled a point.
22The two interviewers had different perceptions of some of the answers given by Ms. Andraychak and Ms. Aalto, but that happens. Despite having model answers, there is some subjectivity involved in scoring. As stated in Re OPSEU (Albert Simmons) and Ministry of Government Services, GSB No. 483/82 (McLaren), at p. 14:
The evaluation of the candidates was of necessity a subjective process but one which seems to have been carried out with the integrity and objectivity necessary to arrive at a fair decision. While any candidate may quarrel with the subjective assessment of the panel members individually or collectively, that of itself does not mean that the process is defective.
In Re OPSEU (Nacynski) and Ministry of Economic Development and Trade, GSB No. 2003-3124 (Abramsky), the Board found that where the panel followed their “minimum acceptable response” in scoring, and evaluated the answers provided in comparison to that response, some subjectivity in scoring was permissible.
23The decision also quoted from the Board’s earlier decision in Re OPSEU (Esposito) and Ministry of Housing, GSB No. 2168/92 (Kaplan) where, despite evidence of potential bias, the Board found that although the grievor may not have been given all of the credit for her answers that she might have been, there was no overall unfairness in the grading process. The Board stated, at pp. 28-29:
[W]hile a handful of questions might have been marked differently, and while other assessors might have been more generous in the assignment of grades, we cannot say, having carefully reviewed the grievor’s answers and grades, …and those of the successful applicants, that there was any overall unfairness in the grading process. Certainly, there was no evidence that the grievor was singled out for particularly harsh treatment when it came time to assign grades, nor is there any credible evidence supporting the assertion that Mr. McBride was biased against the grievor….While the evidence does suggest that the grievor might have received some additional points for a number of questions, we find that, on balance, her final grade accurately reflects her performance in this competition. ….
24In this case, assuming without deciding that the grievor may have received some additional points on some questions, I cannot conclude that it would have changed the outcome of the competition. It would not have established that she exceeded the qualifications and abilities of Ms. Aalto by a substantial and demonstrable margin.
25The Union further argues that the panel improperly did not review the references provided by the candidates until after the second interview. That is true, but they were reviewed before the decision about the competition was made. They were not given a numerical score, but that is not required. As stated in Re OPSEU (Bent) and Ministry of Transportation, GSB No. 1733/86 (Fisher) at p. 6, “[i]t is sufficient to show that these matters were considered and given due consideration, that it is not ignored.”
26The Union also contends that no personnel files were reviewed or performance appraisals considered. Again, that is true, but they were not submitted into evidence. Nor is there evidence to establish that Ms. Andraychak had performance appraisals during her numerous contract positions with different ministries. She may well have had them, and they may well have been very positive, but they were not submitted into evidence. As stated in Re OPSEU (Suave) supra at p. 31, “an unsuccessful applicant who complains that a selection committee failed to gather appropriate sorts of information can be expected to put before the Board any of the missing information which supports his or her claim to the job.” In Re OPSEU (Naczynski), supra at par. 65, I agreed with that conclusion, stating “it is not sufficient merely to state that the information was improperly not assessed. It must be submitted and shown that it would have, or could have, made a difference.” That was not done here.
27It is unclear in the evidence whether any consideration was given to the applicants’ application and resumes, beyond using them to determine if an applicant received an interview. There was no testimony or evidence concerning the applications. In this regard, the Union is correct that Ms. Andraychak’s resume reveals a wealth of secretarial and related administrative experience, whereas the resume of Ms. Aalto reveals that apart from her acting assignment, her experience was as a Correctional Officer. But this alone does not establish that the grievor was demonstrably superior to Ms. Aalto. Ms. Aalto had been successfully acting in the position for over six months, and although she did not do as well as Ms. Andraychak on the interview, she did reasonably well. She also did better on the data entry test, making only two errors to the grievor’s four, and, according to the documents in evidence, she did slightly better on the prioritization test.
28The Board has held that the procedure and substance of a job competition must provide “a fair and reasonable assessment of the relative strengths of the candidates.” Re OPSEU (Alam) and Ministry of Community and Social Services, GSB No. 140/84 (Roberts). In this case, based on the evidence presented, I conclude that there was a “fair and reasonable assessment of the relative strengths of the candidates.” Although Ms. Andraychak was an excellent candidate, on the evidence presented she has not established, on the balance of probabilities, that she was superior in ability and qualifications to Ms. Aalto by a substantial and demonstrable margin.
29In the alternative, the Union argued that the competition should be rerun. Under the specific facts and circumstances of this case, I find no basis to order a rerun of this competition.
CONCLUSION
30For the reasons set forth above, the grievance is dismissed.
Dated at Toronto this 26th day of October 2010.