GSB#2008-1107

UNION#2008-0649-0007

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Jobson)

Union

• and -

The Crown in Right of Ontario (Ministry of Transportation)

Employer

BEFORE

Ken Petryshen

Vice-Chair

FOR THE UNION

Ryan White Cavalluzzo Hayes Shilton McIntyre & Cornish LLP Barristers and Solicitors

FOR THE EMPLOYER

Omar Shahab Ministry of Government Services Labour Practice Group Counsel

HEARING

January 28 & 29, 2010, March 4, 2010.

Decision

1In a grievance dated April 30, 2008, Mr. Jobson challenges the results of a job competition for the position of Special Projects Forman/Woman (“SPF/W”). The Union takes the position that this competition was fatally flawed and it requests that I remedy this breach of article 6.3 of the Collective Agreement by directing the Employer to place Mr. Jobson in the SPF/W position or, alternatively, by directing a rerun of the competition. The Employer acknowledges that there were flaws in the competition. However, it takes the position that the flaws were de minimis and that the remedies requested by the Union are not warranted in the circumstances of this case. Mr. J. Knight, the successful candidate, attended the hearing and participated to a limited extent.

2In addition to the usual and considerable amount of documents filed in a case of this type, the Union called Mr. Jobson as a witness. Mr. Knight and Mr. J. Landry were called to testify by the Employer. There were relatively few factual disputes.

3The job ad for the SPF/W position was posted on November 23, 2007. The duties of the position essentially relate to highway construction and maintenance. The job ad indicates that the SPF/W position provides “technical and administrative support to the technical services and maintenance sections for delivery of special projects in accordance with the Ministry of Transportation’s policies, procedures, directives and processes.” It also sets out the qualifications for the position which include “knowledge of highway construction and maintenance procedures, … knowledge of highway engineering, survey and quality control principles and practices, … knowledge of and experience in contract administration and tendering procedures and practices; mathematical skills to assist with design, complete accurate calculations of contract quantities and estimates, and evaluate bids prices for highway construction projects; interpersonal, communication and negotiation skills; … supervisory skills to oversee field personnel, contractors and consultants; and computer proficiency…” The competition was open to applicants from outside of the Ontario Public Service (“the OPS”). Although he had worked for the Ministry previously, Mr. Knight was not employed in the OPS when he applied for the SPF/W position.

4Applicants for the position were screened in on the basis of their resumes by the Northern Recruitment Centre. In addition to Mr. Jobson and Mr. Knight, Mr. M. Arsenault was also screened in. The three candidates were interviewed for the position by a three person panel consisting of Mr. Landry, Maintenance Superintendent for the New Liskeard area, Ms. L. Kramp, Technical Services Supervisor, and Ms. L. Ward, Human Resources Representative. Mr. Landry had held the SPF/W position previously. The scoring was based on an interview and a written test. The total score was 105 marks, with the interview worth 85, the written test worth 15 and 5 marks were allocated for communication skills, as demonstrated during the interview. A benchmark score of 65% was established. The Employer determined that this minimum score was necessary to demonstrate an ability to do the job. The same general process was followed in assessing the three candidates. They were all asked the same set of questions at the interview, with the same answer keys for each question. The selection criteria were directly related to the position and were communicated to the applicants. Many of the interview questions were designed to elicit the relevant past experience of the candidates. The panel members took notes during the interviews.

5Mr. Knight achieved a score of 71.33 marks (67.94%, Mr. Arsenault obtained 62.17 marks (59.21%) and Mr. Jobson came third with 54.17 marks (51.59%). Mr. Knight and Mr. Jobson each had an average of 4 marks for communication skills. The differential in their interview and written test scores were 12.83 marks and 4.33 marks respectively. Although Mr. Landry could not recall what number the panel decided upon to represent relative equality and did not believe that it applied relative equality, the parties agreed that a differential of within 10% would represent relative equality. If one just focused on the scoring in this competition, Mr. Jobson would have needed about 6.5 more marks to bring him within the 10% range. Neither Mr. Jobson nor Mr. Knight had held the SPF/W position previously.

6The parties agreed on a number of significant matters. They agreed that the interview questions and the answer keys were appropriate and sufficiently connected to the SPF/W position. They also agreed that the marks assigned to Mr. Knight and Mr. Jobson were appropriate. In other words, the Union does not take issue with the part of the process from which the Employer derived the scores for each candidate. However, the Union argues that the competition was seriously flawed because the Employer relied only on these scores when assessing the skills and abilities of the candidates.

7Although used as an initial screening tool, the resumes were not considered by the selection panel. Personnel files were not reviewed. A review of Mr. Jobson’s personal file would have disclosed performance appraisals. The selection panel did not solicit information from Mr. Jobson’s references or his supervisors. It appears his references were not contacted because his overall score was below the benchmark and the Employer was not prepared to offer him the position. Mr. Landry did contact the references provided by Mr. Knight and Mr. Arsenault. Mr. Knight’s references were contacted for the purpose of determining whether the information they provided would confirm the information supplied by Mr. Knight in his interview. He was satisfied that the references did confirm the results of Mr. Knight’s interview.

8Mr. Jobson and Mr. Knight testified at considerable length about their relevant employment history. Mr. Jobson started with the Ministry as a Highway Equipment Operator in 1981 and he worked in that role until 1992, finishing as an Operator #3. From 1992 until 1998, he worked as a General Highway Foreman 1. He then left the Ministry to work for Miller Maintenance from 1998 until 2002 as a Patrol Supervisor. From 2002 to 2003, he worked for Miller Paving Northern as a Construction Supervisor. He returned to the Ministry in 2003 as a Municipal Day Labour Foreman and he was in this position when he applied for the SPF/W position.

9Mr. Knight started with the Ministry in 1985 and worked as a Roadside Vegetation Management Technician until October of 1998. He then worked for the Township of Dack as a Road Superintendent until March of 2000. He worked as a Shift Supervisor for Miller Maintenance from October 1999 until April of 2000, as a Patrol Foreman until December of 2001, and as a Patrol Supervisor until April of 2007.

10The parties also introduced some of the information which the panel had not considered when it selected Mr. Knight for the position. I was provided with the cover letters and resumes that had been submitted by Mr. Jobson and Mr. Knight. The Union filed three of Mr. Jobson’s performance appraisals relating to his work as a Municipal Day Labour Foreman. These appraisals were prepared by Mr. Jobson’s Manager, Mr. D. Matte. Mr. Matte was also one of Mr. Jobson’s references. I was also provided with the three reference check questionnaires involving Mr. Knight that were completed by Mr. Landry. Mr. Landry asked the references questions related to the selection criteria and recorded their responses on the questionnaire. During his testimony, Mr. Landry provided his assessment of this additional information. In essence, it was his opinion that Mr. Jobson did not gain any advantage over Mr. Knight when the additional information was taken into account.

11The Union’s position is that the Employer contravened article 6.3 of the Collective Agreement when the interview panel failed to consider Mr. Jobson’s resume, his personnel file, including performance appraisals, and failed to consult his references, which were his current manager and two of his previous supervisors. Union counsel submitted that the information from these sources establishes that Mr. Jobson’s qualifications and ability to perform the SPF/W position were relatively equal to the qualifications and ability of Mr. Knight and on this basis I should direct the Employer to place Mr. Jobson into the position. Alternatively, Union counsel argued that the failure of the interview panel to consider the additional information could have affected the outcome of the competition and on this basis I should direct the Employer to rerun the competition. In support of the Union’s position, Union counsel referred me to the following decisions: OPSEU (MacLellan and DeGrandis) and Ministry of Government Services (1982), GSB No. 506/81 et al. (Samuels); OPSEU (Marek) and Ministry of the Attorney General (1984), GSB No. 414/83 (Samuels); OPSEU (Liblik/Scipnek) and Ministry of Transportation (1993), GSB No. 2525/91 (Dissanayake); OPSEU (Sauve) and Ministry of Transportation (1993), GSB No. 1695/91 (Gray); OPSEU (Hall/Powers) and Ministry of Correctional Services (1990), GSB No. 716/89 et al. (Gorsky); OPSEU (Skagen and Glemitz) and Ministry of the Attorney General (1988), GSB No. 1934/87 et al. (Springate); OPSEU (Poole) and Ministry of Health (1988), GSB No. 2508/87 (Samuels); OPSEU (Christmas and Chaput) and Ministry of the Attorney General (1988), GSB No. 0907/86 et al. (Gandz); OPSEU (Palatino/Ragos/Patterson) and Ministry of Health (1990), GSB No. 1968/89 et al, (Kaplan); OPSEU (McDougall) and Ministry of the Environment (2001) GSB No. 2015/99 (Dissanayake); and, OPSEU (Mclwain) and Ministry of Consumer & Commercial Relations (1990), GSB No. 628/89 (Verity).

12As noted previously, the Employer concedes that the competition was flawed because the interview panel did not consider the resumes, personnel files, references and did not consult supervisors. Employer counsel submitted however that the result of the competition would be the same even if the panel had considered the information from these sources. Counsel noted that there is a significant differential in the scores in this instance such that Mr. Jobson has to make up considerable ground over Mr. Knight to establish that he was relatively equal and is therefore entitled to be placed into the position or even to establish that he could be relatively equal and is therefore entitled to a rerun. Employer counsel submitted that the evidence illustrates that the additional information the panel should have considered does not give Mr. Jobson any advantage over Mr. Knight. He argued that when this information is viewed separately it at best balances out the relevant considerations between Mr. Jobson and Mr. Knight such that Mr. Jobson cannot make up any ground in the effort to narrow the considerable gap in the scores. It is on the basis of this analysis that the Employer argues that the most the Union can achieve here is a declaration that the Employer breached article 6.3 of the Collective Agreement. Employer counsel relied on the following decisions: OPSEU (Naczynski) and Ministry of Economic Development and Trade (2006), GSB No. 2003-3124 (Abramsky); OPSEU (Esposito) and Ministry of Housing (1995), GSB No. 2168/92 (Kaplan); AMAPCEO (Alderson) and Ministry of Children and Youth Services (2008), GSB No. 2006-1007 (Dissanayake); OPSEU (Sequeira and Lueck) and Ministry of Transportation & Communications (1990), GSB No. 768/87 et al. (Gandz); OPSEU (D. Bent) and Ministry of Transportation (1989), GSB No. 1733/86 (Fisher); OPSEU (Simmons) and Ministry of Government Services (1983), GSB No. 483/82 (McLaren); and, OPSEU (Cordileone/Jamieson) and Ministry of Transportation (1997), GSB No. 1228/94 et. al. (Fisher).

13Article 6.3 of the Collective Agreement provides as follows:

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 restively equal, seniority shall be the deciding factor.

14The Employer’s obligation under article 6.3 has been well defined in decisions of the GSB. In Re OPSEU (Quinn) and Ministry of Transportation and Communications (1979), GSB No. 9/78, Vice-Chair Prichard succinctly explained the Employer’s general obligation when filling vacancies as follows:

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

15Subsequent decisions have formulated criteria for assessing qualifications and ability when the Employer embarks on the task of filling a vacancy. The criteria set out in OPSEU (MacLellan and DeGrandis), supra, starting at page 25 are as follows:

1. Candidates must be evaluated on all of the relevant qualifications for the job as set out in the Position Specification.

2. The various methods used to assess the candidates should address these

relevant qualifications insofar as it is possible.

3. Irrelevant factors should not be considered.

4. All the members of the selection committee should review the personnel files of all the applicants.

5. The applicants’ supervisors should be asked for their evaluations of the

applicants.

6. Information should be accumulated in a systemic way concerning all of the applicants.

16The Employer’s obligation to systematically and comprehensively obtain

relevant information about the candidates is not met by only scoring an interview and a written test. As OPSEU (Esposito), supra, and OPSEU (Naczynski), supra, and many of the other decisions set out above make clear, the Employer is obliged to consider

resumes, personnel files, relevant information from supervisors and references when assessing candidates. As it conceded, the Employer’s failure in this competition to systematically consider the information from these sources constitutes a contravention of article 6.3 of the Collective Agreement.

17The more significant question in this case is whether the flaws in this competition affected the outcome. Recent decisions of the GSB have concluded that there is an onus on the Union not only to establish a breach of article 6.3 on the balance of probabilities, but also to establish that the Employer’s failure to systematically consider the kind of relevant information that the Employer ignored in this case would have or could have affected the result of the competition. In OPSEU (Naczynski), supra, after reviewing the relevant decisions, Vice-Chair Abramsky refers to the existence of two standards:

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

18I have thoroughly reviewed all of the information placed before me which

was not considered by the interview panel and the submissions of counsel relating thereto. I agree with Employer counsel that there is enough information before me to assess the relative qualifications and abilities of Mr. Jobson and Mr. Knight. I have considered in particular the information referenced by Union counsel for the purpose of illustrating that it would have or could have altered the result of this competition if it had been properly considered by the interview panel. In my view, the interview panel would not have reached a different result in this competition even if it had considered the additional information.

19The resumes of Mr. Jobson and Mr. Knight speak for themselves in highlighting their employment history. They disclose that they both have many years of experience on both municipal roads and highways in different jobs. Mr. Knight and Mr. Jobson both have experience with the Ministry and they both have worked in the roads sector outside of the Ministry, notably with Miller Maintenance or Miller Construction. After reviewing the resumes in light of duties of the SPF/W position, Mr. Landry testified that they were largely comparable, with Mr. Knight having a slight advantage because of his more recent highway experience. Upon reviewing the resumes of Mr. Jobson and Mr. Knight, particularly within the context of their testimony, I am satisfied that Mr. Landry’s assessment of their resumes is a reasonable one in the circumstances. It is difficult to examine the resumes and conclude that Mr. Jobson has an advantage over Mr. Knight.

20Mr. Jobson’s performance appraisals illustrate that he is a good employee. I agree with Employer counsel’s submission that they do not indicate that he is an excellent employee. I believe it is safe to conclude that Mr. Matte, the manager who prepared these performance appraisals, would also have provided a good reference for Mr. Jobson, as would his other supervisors. No performance appraisals were provided for Mr. Knight. However, the detailed reference check questionnaires completed by Mr. Landry, effectively provide an appraisal of Mr. Knight’s performance from his previous supervisors. Union counsel argued that the reference checks performed for Mr. Knight did show that there were two areas in which Mr. Jobson gained a considerable advantage.

21Mr. B. Larocque, one of Mr. Knight’s direct supervisors at Miller Maintenance, was interviewed as a reference check by Mr. Landry. When asked about Mr. Knight’s oral communication skills, Mr. Larocque responded that “John needs significant improvement with oral communication. He is very capable but does not freely share thoughts and ideas. John is not talkative and is somewhat shy.” When asked if Mr. Knight had been disciplined, Mr. Larocque said “yes” and that “It was related to an area of his work that required improvement, it was resolved.” Union counsel submitted that these responses could have affected the result of the competition.

22Mr. Landry testified that he did not consider the comment about Mr. Knight’s oral communication skills to be a significant factor. He noted that the other references did not make similar comments and that the panel gave him 4 out of 5 for his communication skills. Mr. Landry also testified that he did not consider the discipline response as relevant. He noted that Mr. Knight was not formally disciplined and that the issue in question concerned his not working extra hours so as to attend to personal commitments. Mr. Landry believed this would not be an issue at the Ministry where the person in the SPF/W position worked an 8-hour shift. Given that Mr. Larocque thought that Mr. Knight would be a good candidate, Mr. Landry did not believe that these responses should have an impact on the score Mr. Knight received.

23When the comments of Mr. Laroque are examined in light of the responses from the other references and in the context of all the evidence, I agree that they are of very little significance and that it was appropriate for Mr. Landry to give them little weight. The interview panel had the opportunity to directly observe Mr. Knight’s communication skills. I also had the opportunity to observe the communication skills of both Mr. Jobson and Mr. Knight when they testified. Mr. Knight’s communication skills were satisfactory and it did not appear that Mr. Jobson had an advantage over Mr. Knight in this regard. Although Mr. Laroque indicated that Mr. Knight had been disciplined, the evidence suggests that he was not formally disciplined but rather cautioned about attending to personal matters instead of remaining at work beyond what for the Ministry would be a normal work day. It is difficult to see how these two responses from Mr. Larocque could impact negatively on the assessment of Mr. Knight’s qualifications and ability in relation to the SPF/W position. A comparison of Mr. Jobson’s performance appraisals and the reference checks for Mr. Knight again illustrate that Mr. Jobson does not gain any advantage over Mr. Knight when the information from these sources are considered.

24The unchallenged systematic scoring process resulted in Mr. Jobson

receiving approximately 17 marks less than Mr. Knight, the successful candidate. Mr. Jobson needed an additional 6.5 marks to get within the range of relative equality. This is not an insignificant number. Irrespective of how much weight should be given to the relevant information which the interview panel failed to consider, that information demonstrates that Mr. Jobson does not gain any advantage over Mr. Knight when it is considered by itself. In other words, the differential in the scores would not have been altered significantly if the panel had systematically considered the information in the resumes, personnel files, performance appraisals, etc. Mr. Jobson is a Ministry employee with considerable experience and someone who has made a valuable contribution during his career in the public service. However, there is no basis for concluding that he was or that he might be relatively equal to Mr. Knight in this competition. Given this conclusion, there is no basis for altering the result of the competition or for ordering a rerun.

25For the forgoing reasons, I simply declare that the Employer contravened article 6.3 of the Collective Agreement because of the flaws in the competition.