GSB#2010-0838

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Association of Management, Administrative and Professional Crown Employees of Ontario (McGowan)

Association

• and -

The Crown in Right of Ontario (Ministry of Natural Resources)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

James McDonald Sack Goldblatt Mitchell LLP Barristers and Solicitors

FOR THE EMPLOYER

Cathy Phan Ministry of Government Services Labour Practice Group Counsel

HEARING

February 28, 2011.

Decision

1The grievor, Ms. Doreen McGowan, has grieved a job competition for the position of Forest Environmental Assessment Implementation Coordinator in which she participated unsuccessfully. The Board has satisfied itself that the successful applicant, Mr. John Sullivan, was provided proper notice of this proceeding. He was not in attendance at the hearing.

2The association has challenged the results of the competition on several grounds. However, the parties agreed that the Board should initially determine a narrow issue which goes to the appropriate standard or test to be used by the employer in assessing the qualifications and abilities as between the grievor and Mr. Sullivan. The facts pertinent to this issue were presented through opening statements of counsel and documentary evidence. The parties agreed that for the purposes of this decision only, the facts so presented may be accepted as proven.

3The relevant provisions of the collective agreement are as follows:

11.1 Employees from outside the bargaining unit temporarily assigned to an AMAPCEO position for a period of more than thirty (30) calendar days will on the 31st calendar day commence paying dues and be governed by the terms of the AMAPCEO collective agreement except that pensions and insured benefits, as well as job security entitlements, will continue to be governed by the rules applicable to the employee’s home position.

18.3.1. In filling a vacancy, applicants’ qualifications for the position shall be assessed relative to the selection criteria – the knowledge, skills, abilities and experience required to perform the duties of the position. The most qualified applicant for the position shall be selected to fill the vacancy.

18.3.2 Where the qualifications and ability are relatively equal between an AMAPCEO unit applicant and a non-AMAPCEO unit applicant preference will be given to the AMAPCEO unit applicant.

4The general test for job competitions, as set out in article 18.3.1, is that the most qualified applicant must be selected to fill a posted vacancy. Article 18.3.2, however, creates an exception where the competition is between “an AMAPCEO unit applicant” and “a non-AMAPCEO unit applicant”. In such cases, preference is given to the former provided his/her qualifications and ability are relatively equal.

5The appointment in question was based solely on the marks achieved by the applicants in an interview process consisting of an oral interview, a presentation and a practical test. While five applicants participated, the two top achievers were, Mr. Sullivan with 77.00 marks and the grievor with 74.75 marks. The employer conceded that given the difference of 2.25 marks, the grievor’s qualifications and ability are relatively equal to those of Mr. Sullivan. However, it is the employer’s position that the relative equality standard in article 18.3.2 had no application as between the grievor and Mr. Sullivan. In the employer’s view, the applicable standard is the “most qualified applicant” standard in article 18.3.1.

6It is agreed that at all relevant times, the grievor was an “AMAPCEO unit applicant” within the meaning of article 18.3.2. The dispute is about Mr. Sullivan’s status at the time. Was he an AMAPCEO unit applicant as the employer submits or a non-AMAPCEO unit applicant as contended by the Association? In the former case the “most qualified” test in article 18.3.1 would govern, while article 18.3.2 would require the application of the “relative equality test” if Mr. Sullivan was a non-AMAPCEO applicant.

7The position in question was posted on January 4, 2010, with a closing date of January 18, 2010. The grievor submitted her application on January 14, 2010. On January 18, the closing date for applications, two things happened with Mr. Sullivan, who at the time was a member of the OPSEU bargaining unit and was covered by the OPSEU collective agreement. First, effective January 18, 2010, he was appointed on a temporary basis to a position within the AMAPCEO bargaining unit. Second, the same day he applied for the posting in question.

8The interviews for the job competition were held on February 5, 2010 for the grievor and on February 8, 2010 for Mr. Sullivan. The interview panel consisted of Mr. Dan Pyke, Manager Forest Management Planning Section, and Mr. Brian Hillier. After the panel members had scored and tallied the scores, references were done. One of the references for Mr. Sullivan was dated February 19, 2010. On February 19, 2010, Mr. Pyke advised the grievor that the Director’s approval had to be obtained before declaring the winner of the competition. On February 23rd, Mr. Pyke verbally informed Mr. Sullivan that he was the successful applicant, and that information was verbally conveyed to the grievor on February 25, 2010. A formal letter of appointment dated February 26, 2010 was received by Mr. Sullivan. He accepted and commenced in the position on March 7, 2010.

9The critical language on which this dispute turns is in article 11.1. The parties agree that under its terms, Mr. Sullivan acquired AMAPCEO unit status on the 31st calendar day following his temporary appointment to the position within the AMAPCEO bargaining unit, namely, February 18, 2010. The disagreement is as to whether that qualified Mr. Sullivan as an AMAPCEO applicant for purposes of the competition. The employer takes the position that where an applicant has AMAPCEO unit status as of the date the employer makes the final selection of the successful applicant, the applicable test is the “most qualified applicant” test in article 18.3.1. The final decision was made and conveyed to Mr. Sullivan on February 23rd. Since Mr. Sullivan had acquired AMAPCEO unit status on February 18th, the employer contends that the applicable test was the “most qualified” applicant test in article 18.3.1, and since he scored higher than the grievor, he was the most qualified applicant and entitled to be appointed.

10Counsel noted that article 11.1 explicitly provides that an employee from outside the AMAPCEO bargaining unit, who is temporarily assigned to an AMAPCEO position for the specified period and thus obtains coverage under the AMAPCEO collective agreement, is still not covered by that collective agreement for purposes of pensions, insured benefits and job security entitlements. However, there is no similar exclusion of the right to be covered by the AMAPCEO collective agreement for purposes of applying for job postings.

11Employer counsel also submits that both articles 18.3.1 and 18.3.2 imply that at the time of their application the employer had already assessed the qualifications and ability of the applicants. In that light, the better interpretation is, according to her, that the AMAPCEO unit status must be determined as of the time when the final selection is made. While counsel presented two arbitration awards, I will not review them in this decision because they are not in any way relevant or of assistance in determining this dispute, which turns on the particular language in the collective agreement between these parties.

12The Association takes the position that in order to be considered an AMAPCEO unit applicant for purposes of articles 18.3.1 and 18.3.2, Mr. Sullivan must have acquired that status on the day the posting closed, namely January 18, 2010. He clearly did not meet that requirement. Counsel for the Association pointed out that articles 18.3.1 and 18.3.2 use the phrase AMAPCEO unit “applicant”. It is not about successful candidates or appointees. He submits that on the date a posting closes, the list of “applicants” is established for all purposes. The employer becomes aware of the “applicants” it has to interview and assess. And each applicant knows who he/she is competing against. Since the “applicant” status is crystallized and determined at the closing of the posting, submits counsel, it makes sense to make the determination of whether or not an applicant was an AMAPCEO unit applicant, also as of that point in time.

13Association counsel also argues that the employer has sole control over the timing of the final selection. The Association has no say or input in that regard. Therefore, if the employer’s position is upheld, it would allow the employer to manipulate the process. By advancing or delaying the final selection, the employer would be able to either hinder or enhance the chance of success for particular applicants. The parties would not have, submits counsel, intended to confer such authority on one of the parties.

14The parties agreed that there is no guidance in the collective agreement as to the relevant point of time in a competition process when AMAPCEO unit applicant status must exist for article 18.3.1 to apply. No case law has been presented either, that would be of assistance. Nevertheless, the Board must, as best as it can, determine what the parties reasonably would have expected when it negotiated the language.

15Having carefully examined the provisions in question and the submissions of the parties, I have concluded that the better and more reasonable interpretation is that advanced by the Association. I agree with employer counsel that an employee from outside the AMAPCEO bargaining unit who obtains coverage within the AMAPCEO collective agreement under article 11.1 following a temporary assignment is not denied access to the job posting provisions of the AMAPCEO collective agreement. However, that begs the question as to which job posting provision, article 18.3.1 or 18.3.2, governs.

16I am persuaded that the parties would have intended to have certainty in the timing for purposes of establishing “AMAPCEO unit applicant” status. As Association counsel argued, who is an applicant for purposes of a job competition is settled once and for all when the posting closes. That is when “applicant” status is established. Therefore, logically any determination as to the type or category of applicant, should also be made as of that same date.

17Association Counsel’s argument that adopting the date of final selection as the relevant date would allow the employer to unilaterally manipulate the process and influence the result of a job competition also has merit. If such manipulation takes place, or is perceived to have taken place, that would lead to allegations of bad faith, grievances and potentially lengthy litigation. It is unlikely that the parties would have intended to create such a situation. Even apart from the potential for actual or perceived manipulation, it is improbable that the parties would have intended the uncertainty that necessarily follows from the employer’s interpretation. The timing of final selection of a successful applicant in a job competition may depend on any number of factors. For example, the workload of a manager or the availability of a senior manager whose approval is required, the sickness of someone involved in the selection process, or a delay by a reference provider. I am convinced that the parties would have opted for certainty rather than for a “moving date” which could depend on any number of unforeseeable factors.

18For all of those reasons, I conclude that for article 18.3.1 to apply, an applicant must have acquired AMAPCEO unit applicant status as of the time the job posting closed for purposes of receiving applications. Having determined the issue put to me on consent, I remain seized with jurisdiction to deal with the grievance on dates already scheduled.